United States v. Ramirez-Flores

Decision Date21 February 2014
Docket NumberNo. 12–15602.,12–15602.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Lazaro RAMIREZ–FLORES, Defendant–Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

OPINION TEXT STARTS HERE

Linda Julin McNamara, Donald L. Hansen, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, for PlaintiffAppellee.

John Leonard Badalamenti, Adeel Bashir, Alec Fitzgerald Hall, Federal Public Defender's Office, Tampa, FL, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL, for DefendantAppellant.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:12–cr–00169–EAK–MAP–1.

Before MARTIN and ANDERSON, Circuit Judges, and FULLER,* District Judge.

ANDERSON, Circuit Judge:

Lazaro Ramirez–Flores appeals his forty-six months sentence for illegal re-entry after deportation. Ramirez–Flores contendsthat the district court erred in deeming his 2007 South Carolina conviction for the burglary of a dwelling a “crime of violence” under United States Sentencing Guidelines (“Guidelines”) § 2L1.2(b)(1)(A)(ii), which mandates a sixteen-level enhancement. After careful review, we affirm the district court's judgment.

I.

Ramirez–Flores is a native and citizen of Mexico who first entered the United States illegally in 1998. On June 27, 2012, he pled guilty to illegal re-entry in violation of 8 U.S.C. §§ 1325(a)(1), 1326(a), and 1329.

Prior to sentencing, the Probation Office prepared a Presentence Investigation Report (“PSI”) and calculated the applicable Guidelines range to be forty-six to fifty-seven months. The Probation Office based this determination on its finding that Ramirez–Flores' 2007 conviction for the burglary of a dwelling in violation of S.C.Code § 16–11–312(A) qualified as a “crime of violence,” leading to a sixteen-level enhancement. SeeU.S.S.G. § 2L1.2(b)(1)(A)(ii). Importantly for this appeal, paragraph 28 of the PSI states that Ramirez–Flores “forcibly entered the victim's residence with a co-defendant and removed property from the residence.”

Ramirez–Flores did not file written objections to the PSI, but he objected at the sentencing hearing to paragraph 17, which imposed the sixteen-level enhancement, and to the “application of the law [and] facts” in paragraph 28. Specifically, he argued that the South Carolina burglary conviction did not constitute a “crime of violence” because the corresponding judgment described the offense as “Burglary (Non–Violent).” He also speculated that, while the indictment charged him with entering the “dwelling” of the victim, he may have pled guilty to a lesser offense. The district court overruled the objection and applied the sixteen-level enhancement. Ramirez–Flores now challenges this determination.

Although the sentencing transcript suggests that neither party at sentencing was aware of this fact, both parties agree on appeal that S.C.Code § 16–11–312(A) does not encompass only the federal “generic” definition of burglary. Rather, it encompasses not only unlawful entry into a residence, but also unlawful entry into non-generic structures, such as outhouses, sheds, or other buildings that are within two hundred yards of and appurtenant to a residence. 1SeeS.C.Code §§ 16–11–10, 16–11–310(2), 16–11–312(A). In his initial brief on appeal, Ramirez–Flores argued that the South Carolina statute can be violated by entering into a non-generic structure, such as a shed appurtenant to and within 200 yards of a dwelling. His brief expressly urged this court to engage in the modified categorical approach (described below), and argued that the government had failed to prove that his prior South Carolina conviction rested on anything other than entry into such a shed. The brief argued that the indictment and the judgment of conviction do not clear up the ambiguity about which structure was entered, such that the government had failed to prove that the prior South Carolina conviction was a “crime of violence.”

After the parties had completed briefing but before oral argument, the Supreme Court decided Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), clarifying the proper analytical approach for determining whether a defendant's sentence should be enhanced.2 Ramirez–Flores argued for the first time at oral argument that S.C.Code § 16–11–312(A) is not a divisible statute within the meaning of Descamps, and therefore urged us to confine our inquiry to the fact of conviction and the statutory definition of the offense. He argued that his conviction can never qualify as a “crime of violence” because the elements of S.C.Code § 16–11–312(A) sweep more broadly than the corresponding generic offense.

II.

The Guidelines impose a sixteen-level enhancement in cases where an alien “was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The term “crime of violence” means “any of the following offenses under federal, state, or local law ... [including the] burglary of a dwelling.” Id.§ 2L1.2 cmt. n.1(B)(iii).

Not all burglaries qualify as a “crime of violence.” In resolving whether a prior conviction triggers a Guidelines enhancement, we generally apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600–02, 110 S.Ct. 2143, 2159–60, 109 L.Ed.2d 607 (1990). Under Taylor, a conviction for burglary is a predicate “crime of violence” only if the underlying state offense meets the generic definition of burglary—that is, has the “basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599, 110 S.Ct. at 2158;accord United States v. Rainer, 616 F.3d 1212, 1214–15 (11th Cir.2010). If the statute of conviction “sweeps more broadly than the generic [burglary], a conviction under that law cannot [categorically] count as a [“crime of violence”], even if the defendant actually committed [burglary] in its generic form.” Descamps, ––– U.S. at ––––, 133 S.Ct. at 2283.

But in cases involving a “divisible” statute—i.e., one that sets out one or more elements of the offense in the alternative, in effect creating several different crimes—a modified categorical approach applies. See id. at ––––, 133 S.Ct. at 2283–85;Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1280 (11th Cir.2013). If at least one of the alternative elements matches the generic definition, we may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative element formed the basis of the defendant's prior conviction.” Descamps, ––– U.S. at ––––, 133 S.Ct. at 2281. We have also permitted the use of undisputed facts contained in a PSI. See United States v. Bennett, 472 F.3d 825, 834 (11th Cir.2006).3 When properly applied, then, the modified categorical approach enables us to “identify, from among several alternatives, the crime of conviction so that [we] can compare it to the generic offense.” Descamps, ––– U.S. at ––––, 133 S.Ct. at 2285.

It is clear from Descamps and from our even more recent decision in Donawa that the modified categorical approach “serves a limited function” and should be used only in a “narrow range of cases.” Id. at ––––, 133 S.Ct. at 2283;accord Donawa, 735 F.3d at 1280–81. If the statute of conviction defines burglary “not alternatively, but only more broadly than the generic offense,” the modified categorical approach “has no role to play.” Descamps, ––– U.S. at ––––, 133 S.Ct. at 2283, 2285.

III.

We first consider Ramirez–Flores' most recent argument that S.C.Code § 16–11–312(A) is not a divisible statute within the meaning of Descamps. Because a conviction under S.C.Code § 16–11–312(A) does not necessarily involve conduct equating to generic burglary, his new argument goes, a conviction under that statute can never qualify as a predicate “crime of violence” for purposes of the Guidelines, even if he actually committed a generic burglary.

At the outset, the government contends that we should review for plain error because Ramirez–Flores did not raise this argument in the district court or in his briefs to this court. We agree. We have consistently stated that a defendant seeking to preserve an objection to his sentence for appeal must “raise that point in such clear and simple language that the trial court may not misunderstand it.” United States v. Massey, 443 F.3d 814, 819 (11th Cir.2006). “The defendant ... fails to preserve a legal issue for appeal if the factual predicates of an objection are included in the sentencing record, but were presented to the district court under a different legal theory. Id. (emphasis added); see also United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir.2013) (per curiam) (reviewing for plain error a new legal argument supporting an objection that was raised in the district court); United States v. Doe, 661 F.3d 550, 567 (11th Cir.2011) (same); United States v. Castro, 455 F.3d 1249, 1252–53 (11th Cir.2006) (per curiam) (same). At sentencing, Ramirez–Flores objected to the sixteen-level enhancement on the ground that his prior South Carolina conviction did not amount to a “crime of violence” because the corresponding judgment of conviction described the offense as “Burglary (Non-Violent).” He also speculated that he may not have pled to the same crime as described in the charging instrument. These objections are substantively different from the argument Ramirez–Flores now raises, namely that a conviction under S.C.Code § 16–11–312(A) can never qualify as a “crime of violence,” even if he actually committed burglary in its generic sense.4 We therefore review his current argument for plain error. See, e.g., Weeks, 711 F.3d at 1261;Doe, 661 F.3d at 567;Castro, 455 F.3d at 1252–53.

To prevail under the plain error standard, an appellant must show: (1) an error occurred; (2) the error was plain; (3) it affected his substantial...

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