United States v. Bernel-Aveja

• Decision Date: 13 December 2016
• Docket Number: No. 15-20308,15-20308
• Citation: 844 F.3d 206
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Cesar BERNEL–AVEJA, also known as Cesar Areja, also known as Cesar Aveja, also known as Cesar B. Aveja, also known as Cesar Bernel Aveja, also known as Cesar Bernal Aveja, also known as Raul Luviano, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

844 F.3d 206

UNITED STATES of America, Plaintiff–Appellee,

v.Cesar BERNEL–AVEJA, also known as Cesar Areja, also known as Cesar Aveja, also known as Cesar B. Aveja, also known as Cesar Bernel Aveja, also known as Cesar Bernal Aveja, also known as Raul Luviano, Defendant–Appellant.

No. 15-20308

United States Court of Appeals, Fifth Circuit.

Filed December 13, 2016

Paul Eunkuk Kim, Renata Ann Gowie, Terri–Lei O'Malley, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Margaret Christina Ling, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant–Appellant.

Before HIGGINBOTHAM, SMITH and OWEN, Circuit Judges.

PRISCILLA RICHMAN OWEN, Circuit Judge:

Cesar Bernel–Aveja was convicted under 8 U.S.C. § 1326(a) and (b)(2) of illegal reentry after deportation and appeals his sentence. He contends that his prior 1996 Ohio conviction for burglary does not qualify as "burglary of a dwelling," a specifically enumerated "crime of violence" under United States Sentencing Guideline § 2L1.2,¹ and therefore that the district court erred in applying a 12-level sentence enhancement. We vacate his sentence and remand for resentencing.

I

Bernel–Aveja pleaded guilty without a plea agreement to illegal reentry after deportation subsequent to an aggravated felony conviction, which was a violation of 8 U.S.C. § 1326(a) and (b)(2). The presentence report (PSR) recommended a base offense level of 8 pursuant to Sentencing Guideline § 2L1.2(a), and a 12-level "crime of violence" enhancement pursuant to § 2L1.2(b)(1)(A)(ii), concluding that Bernel–Aveja's 1996 Ohio conviction for third-degree burglary constituted a "crime of violence" for which Bernel–Aveja received no criminal history points. After applying a 3-level reduction for acceptance of responsibility, the PSR calculated a total offense level of 17. With a recommended criminal history category of III, the PSR calculated Bernel–Aveja's advisory Guidelines sentencing range to be 30 to 37 months of imprisonment.

Bernel–Aveja filed written objections to the PSR's designation of his prior conviction as a "crime of violence." Pertinent to this appeal, Bernal argued that the Ohio offense did not qualify as the enumerated offense of "burglary of a dwelling" because Ohio permits conviction "even though the defendant forms the intent to commit a crime only after the trespass."

Without specifically addressing Bernel–Aveja's argument respecting the timing of intent for purposes of generic burglary, the district court applied the crime of violence enhancement and imposed a within-Guidelines sentence of 37 months of imprisonment, followed by a three-year term of supervised release. Bernel–Aveja has appealed.

II

The Sentencing Guidelines provision applicable to Bernal–Aveja's conviction for illegal reentry after deportation was the version of § 2L1.2 in effect in June 2015, when he was sentenced. It directed that the offense level should be increased by 12 if the defendant was previously convicted of a felony described in subsection (b)(1)(A) that did not receive criminal history points under Chapter Four of the Guidelines.² A "crime of violence" was among the qualifying felony offenses described in that subsection,³ and the definition of "crime of violence" included "burglary of a dwelling."⁴

The sole issue in this appeal is whether the district court erred in concluding that Bernel–Aveja's 1996 Ohio burglary conviction constituted "burglary of a dwelling," within the meaning of § 2L1.2 of Guidelines in effect when he was sentenced.⁵ "We review a district court's interpretation and application of the guidelines de novo "⁶ when, as here, there was an objection in the district court that preserved the issue for appeal.

The judgment of conviction regarding Bernel–Aveja's 1996 offense establishes that he pleaded guilty to burglary in the third degree under Ohio Revised Code section 2911.12.⁷ The Ohio legislature amended section 2911.12 after Bernel–Aveja committed the offense in 1996 but prior to the entry of his guilty plea. However, that amendment is irrelevant to the questions before us, and both parties agree that we should consider the statute prior to its amendment. When Bernel–Aveja committed the 1996 offense, section 2911.12 provided in pertinent part:

(A) No person, by force, stealth, or deception, shall do any of the following:

(1) Trespass in an occupied structure ... with purpose to commit therein any theft offense or any felony;

(2) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense;

(3) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present.

....

(C) Whoever violates this section is guilty of burglary. A violation of division (A)(1) is an aggravated felony of the second degree. A violation of division (A)(2) of this section is a felony of the third degree. A violation of division (A)(3) of this section is a felony of the fourth degree.⁸

Bernel–Aveja and the Government agree that he was convicted under subsection (2) of section 2911.12 because the Ohio judgment of conviction reflected that his offense was a third degree felony. The term "trespass" obtains its meaning from Ohio's criminal trespass statute, which provides: "(A) No person, without privilege to do so, shall do any of the following: (1) Knowingly enter or remain on the land or premises of another...."⁹

After incorporating the elements of "criminal trespass" into section 2911.12, the Ohio burglary statute at issue provides:

(A) No person, by force, stealth, or deception, shall ...

(2) [without privilege to do so, knowingly enter or remain on the land or premises of another] in a permanent or temporary habitation of any person when any person is present or likely to be present, with purpose to commit in the habitation any misdemeanor that is not a theft offense.

Bernel–Aveja contends that "burglary of a dwelling," as used in the Guidelines, requires the defendant to have the intent to commit a crime when unlawfully entering the dwelling. Because the Supreme Court of Ohio has construed language in another statute¹⁰ that is virtually identical to the language at issue in section 2911.12 to mean that the intent to commit a crime may be formed at any time during the trespass,¹¹ Bernel–Aveja contends that section 2911.12 is overly broad and criminalizes conduct that the generic offense of burglary does not. Therefore, he contends, his conviction was not for a "crime of violence" under § 2L1.2 of the Guidelines.

III

One of the Government's arguments is that when Bernel–Aveja was convicted in 1996, the Ohio intermediate courts of appeals were divided on the issue of when a defendant must form the requisite intent under section 2911.12.¹² The Government submits that we should therefore rely on the law prevailing in 1996 in the Tenth District of Ohio, the district in which Bernel–Aveja was convicted. The Tenth District Court of Appeals had held that "the intent with which a person forcibly trespasses in an occupied structure is that which he had in mind at the time of the entry, not one which he may have formed later."¹³ However, this authority—State v. Flowers —was expressly overruled by the Ohio Supreme Court in State v. Fontes .¹⁴

The Ohio Supreme Court's decision in Fontes did not change the law; it construed an existing Ohio statute. The Fontes decision resolved a conflict among Ohio intermediate appellate courts. As the Supreme Court of Ohio has explained, "[t]he general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law."¹⁵ The elements of Bernel–Aveja's offense are determined by consulting the statute, as construed by the Supreme Court of Ohio.¹⁶

The Government's position would also produce the anomalous result that for convictions pre-dating Fontes , the crime-of-violence enhancement would depend on which Ohio court was the court of conviction. A defendant that pleaded guilty in the Tenth District of Ohio before Fontes issued may receive the 12-level enhancement at issue in this case, while a defendant that pleaded guilty in an adjacent district would not.

In Fontes , the defendant was convicted of rape and aggravated burglary.¹⁷ Though the facts were disputed, there was evidence that the defendant, who was acquainted with the victim, entered her unlocked apartment uninvited while the victim was sleeping under the influence of pain medication, and the defendant performed nonconsensual oral sex upon her.¹⁸ The jury was instructed that the defendant "need not possess the purpose to commit a criminal offense prior to trespassing into an occupied structure but could form the purpose to commit a criminal offense while the trespass is in progress."¹⁹ The Ohio Supreme Court upheld the conviction, holding that "a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass."²⁰ The Ohio Supreme Court has subsequently reiterated that "[o]ur cases make clear that the state was required to show that [the defendant] invaded the dwelling for the purpose of committing a crime or that he formed that intent during the trespass."²¹

Though Fontes and the subsequent Ohio Supreme Court decision concerned convictions under Ohio Revised Code section 2911.11,²² it is undisputed that the holdings in those cases regarding the timing of intent apply to section 2912.12 as well because both statutes use the defined term of "trespass" and include similar intent elements.²³

We must determine whether section 2911.12 is overly inclusive and does not come within the generic meaning...