United States v. Castillo-Rivera

• Decision Date: 30 March 2017
• Docket Number: No. 15-10615,15-10615
• Citation: 853 F.3d 218
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Juan CASTILLO-RIVERA, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

853 F.3d 218

UNITED STATES of America, Plaintiff–Appellee
v.
Juan CASTILLO-RIVERA, Defendant–Appellant

No. 15-10615

United States Court of Appeals, Fifth Circuit.

Filed March 30, 2017

Brian W. Portugal, James Wesley Hendrix, Leigha Amy Simonton, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's

853 F.3d 220

Office, Northern District of Texas, Amarillo, TX, Jerry Van Beard, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Fort Worth, TX, Brandon Elliott Beck, Federal Public Defender's Office, Northern District of Texas, Lubbock, TX, John MacIntyre Nicholson, Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant–Appellant.

Matthew R. Miller, Institute for Justice, Texas Chapter, Austin, TX, for Amicus Curiae.

Before STEWART, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge, joined by JOLLY, HIGGINBOTHAM, JONES, OWEN, ELROD, and HAYNES, Circuit Judges, in full; SOUTHWICK, Circuit Judge, joining in all except for footnote 1; HIGGINSON, Circuit Judge, joining in Part III.B only:

Juan Castillo-Rivera was convicted of illegal reentry under 8 U.S.C. § 1326. He received an 8-level enhancement of his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(C), for being "previously ... deported ... after conviction for an aggravated felony." The notes to Section 2L1.2 explain that, "[f]or purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in 8 U.S.C. 1101(a)(43)." That section in turn lists numerous subsets of offenses that qualify as aggravated felonies, including any offense "described in" 18 U.S.C. § 922(g)(1)," which is the federal felon in possession of a firearm statute.

The Probation Office ultimately concluded in its Pre-Sentence Report ("PSR") that the 8-level enhancement applied because Castillo-Rivera had been previously deported in 2013 after a state court conviction for Unlawful Possession of a Firearm by a Felon in violation of Texas Penal Code ("TPC") § 46.04. The district court accepted the PSR, and sentenced Castillo-Rivera pursuant to the 8-level enhancement. Castillo-Rivera appeals, arguing that TPC § 46.04 is substantively broader than 18 U.S.C. § 922(g)(1), and is therefore not an "aggravated felony" under the sentencing guidelines. We AFFIRM.

I

Castillo-Rivera was born in Mexico, and came to the United States shortly after his birth. In 2009, he pleaded guilty in Texas state court to Unlawful Possession of Heroin, a state jail felony. Later that year, he again pleaded guilty in Texas state court, this time to Unauthorized Use of a Vehicle, also a state jail felony. In 2013, he pleaded guilty a third time in Texas state court, to Unlawful Possession of a Firearm by a Felon. He was deported to Mexico shortly thereafter. He reentered the United States illegally and was again arrested in Texas in 2014. This last arrest led to the illegal reentry charge and conviction at issue here.

After Castillo-Rivera pleaded guilty to illegal reentry, the Probation Office produced a PSR. The PSR noted that, because "the defendant was deported from the United States subsequent to a conviction for a felony offense, 4 levels are added pursuant to USSG § 2L1.2(b)(1)(D)." The government filed a written objection, arguing that Castillo-Rivera's conviction for Unlawful Possession of a Firearm by a Felon under TPC § 46.04 was "described in" 18 U.S.C. § 922(g)(1), therefore "constitute[d] an aggravated felony" under

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8 U.S.C. § 1101(a)(43), and thus triggered the "8-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C)." The Probation Office agreed, and issued an addendum modifying the PSR to impose an 8-level enhancement instead of the 4-level enhancement it initially recommended. Castillo-Rivera's guidelines range increased from 24–30 months to 33–41 months as a result of the larger enhancement. Castillo-Rivera filed a written objection to the addendum. The district court overruled his objection, accepted the PSR with the addendum, and sentenced Castillo-Rivera to 34 months in prison.

Castillo-Rivera appealed his sentence to a panel of this court, arguing that TPC § 46.04 is a nongeneric statute because it is substantively broader than 18 U.S.C. § 922(g)(1), and therefore cannot be considered an aggravated felony for purposes of the sentencing guidelines. The panel concluded that this argument was foreclosed by a previous panel's holding, explaining that, "[i]n Nieto Hernandez v. Holder , we squarely held that ‘TPC § 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)'s definition of ‘aggravated felony’ " United States v. Castillo-Rivera , 836 F.3d 464, 464 (5th Cir. 2016) (quoting Nieto Hernandez v. Holder , 592 F.3d 681, 686 (5th Cir. 2009) ). Because it concluded that it was bound by previous precedent, the panel did not address the merits of Castillo-Rivera's statutory arguments. We granted rehearing en banc in order to do so.¹

II

Section 2L1.2(b)(1)(C) of the Sentencing Guidelines states that, when a defendant is convicted of illegal reentry, "[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for an aggravated felony," the defendant's Base Offense Level should "increase by 8 levels." The commentary on this section explains that "[f]or purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in [8 U.S.C. § 1101(a)(43) ]." U.S.S.G. § 2L1.2 cmt. n.3(A). Section 1101(a)(43) provides a lengthy list of subsets of crimes that qualify as aggravated felonies. One such subset includes any "offense described in ... section 922(g)(1)... relating to firearms offenses." 8 U.S.C. 1101(a)(43)(E)(ii). 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute, reads,

[i]t shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition ... which has been shipped or transported in interstate of foreign commerce.

Castillo-Rivera was convicted under TPC § 46.04, which is the Texas felon-in-possession counterpart to 18 U.S.C. § 922(g)(1). The Texas statute reads in relevant part, "[a] person who has been convicted of a felony commits an offense if he possesses a firearm." Tex. Penal Code Ann. § 46.04(a) (West 2009).

To determine whether Castillo-Rivera's conviction under TPC § 46.04 qualifies as an "aggravated felony," we apply a "categorical approach, under which we refer only to the statutory definition of the crime for which the [defendant] was convicted

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... and ask whether that legislatively-defined offense necessarily fits within [8 U.S.C. § 1101(a)(43)'s] definition of an aggravated felony." Larin-Ulloa v. Gonzales , 462 F.3d 456, 463 (5th Cir. 2006). Here, that means asking whether the offense outlined in TPC § 46.04 is "described in" 18 U.S.C. § 922(g)(1). Castillo-Rivera argues that it is not, because the definitions of "felony" and "firearm" for purposes of the Texas statute are broader than their federal counterparts. We address each of these arguments in turn.

III

A. Felony

For purposes of TPC § 46.04, "felony" is defined as any offense that "(1) is designated by a law of this state as a felony; (2) contains all the elements of an offense designated by a law of this state as a felony; or (3) is punishable by confinement for one year or more in a penitentiary." Tex. Penal Code Ann. § 46.04(f) (West 2009). 18 U.S.C. § 922(g)(1), by contrast, makes the possession of a firearm unlawful for those convicted of "a crime punishable by imprisonment for a term exceeding one year." Castillo-Rivera argues that the term "felony" as used in TPC § 46.04 is broader—i.e. includes more crimes—than Section 922(g)(1). He contends, for example, that crimes that are punishable for exactly one year are considered felonies for purposes of TPC § 46.04, but not for 18 U.S.C. § 922(g)(1). And, because the text of TPC § 46.04 includes as felonies crimes that would not qualify under its federal counterpart, it cannot be "described in" section 922(g)(1).

But the comparison of generic federal statutes to allegedly nongeneric state counterparts is not an invitation to apply "legal imagination to a state statute's language." Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). A defendant who argues that a state statute is nongeneric cannot simply rest on plausible interpretations of statutory text made in a vacuum. He must also show "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of the crime." Id . The Supreme Court has explained that establishing a realistic probability is not an exercise in educated guessing. Rather, "[t]o show...