United States v. Fuentes-Canales

• Decision Date: 30 August 2018
• Docket Number: No. 15-41476,15-41476
• Citation: 902 F.3d 468
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Carlos Alberto FUENTES-CANALES, also known as Carlos Alberto Fuentes, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

902 F.3d 468

UNITED STATES of America, Plaintiff–Appellee,

v.Carlos Alberto FUENTES-CANALES, also known as Carlos Alberto Fuentes, Defendant–Appellant.

No. 15-41476

United States Court of Appeals, Fifth Circuit.

FILED August 30, 2018

Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant–Appellant.

Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

The petition for panel rehearing is denied. We withdraw the opinions issued May 22, 2018, and substitute the following opinion.

Carlos Alberto Fuentes-Canales pleaded guilty to re-entering the United States illegally, an offense under 18 U.S.C. § 1326. He had previously been convicted by a Texas state court for burglary of a habitation,¹ and that offense was the predicate for the federal district court’s application of a 16-level sentencing enhancement under § 2L1.2(b)(1)(A)(ii) of the federal Sentencing Guidelines in effect in 2014,² without objection from Fuentes-Canales. The federal district court sentenced Fuentes-Canales to 50 months of imprisonment and three years of supervised release. On appeal, Fuentes-Canales contends that his Texas conviction was not for generic burglary³ and that the district court therefore plainly erred in applying a 16-level enhancement. This court, sitting en banc, issued United States v. Herrold⁴ while Fuentes-Canales’s appeal was pending. That decision abrogated prior decisions of this court that had held that a conviction under Texas Penal Code § 30.03(a)(1) is generic burglary.

It is now plain in light of Herrold that the Fuentes-Canales’s conviction for burglary does not qualify for purposes of § 2L1.2(b)(1)(A)(ii) ’s 16-level enhancement. However, we affirm the district court’s judgment because Fuentes-Canales failed to satisfy the fourth prong of plain-error review.⁵

I

Fuentes-Canales is a citizen of El Salvador and first illegally entered the United States in 1989, when he was 16 years old. He remained in this country for 26 years, and while here, married, became a father, and obtained a divorce. His conviction under Texas Penal Code § 30.02(a) and (d) arose from his unlawful entry into the home of his former wife. After Fuentes-Canales had served his five-year term of imprisonment for that offense, he was deported. Approximately two months later, he was found in the United States and pleaded guilty to re-entering illegally.

The Presentence Investigative Report (PSR) concluded that his prior Texas burglary conviction was for "burglary of a dwelling" within the meaning of comment 1(B)(iii) to § 2L1.2 of the United States Sentencing Guidelines, and the PSR recommended the application of a 16-level "crime of violence" increase to Fuentes-Canales’s base offense level of 8, pursuant to § 2L1.2(b)(1)(A)(ii). In addition, Fuentes-Canales has a prior conviction for driving while intoxicated. After applying a three-level reduction for acceptance of responsibility,⁶ the total offense level was 21. His criminal history category was III, which resulted in an advisory guidelines range of 46 to 57 months of imprisonment.

Fuentes-Canales did not object to the 16-level enhancement, and the district court accepted the PSR’s recommendations. The district court imposed a sentence of 50 months of imprisonment and three years of supervised release. Fuentes-Canales now contends that the district court plainly erred in applying a 16-level enhancement and seeks re-sentencing.

II

Fuentes-Canales’s appeal has been pending in our court for a lengthy period of time. The initial round of briefing was completed in May 2016, but another case, United States v. Uribe , that presented similar issues, was also pending. Because Uribe potentially resolved Fuentes-Canales’s case, our court administratively held Fuentes-Canales’s appeal. On October 3, 2016, a decision in Uribe issued.⁷ It examined whether Texas Penal Code § 30.02(a) was divisible in light of the Supreme Court’s decision in Mathis v. UnitedStates ,⁸ and concluded that the Texas statute was "elements-based" and therefore that it was "divisible and the modified categorical approach applies to determine which of the provisions of § 30.02(a) was the basis of [a defendant’s] conviction."⁹ The Uribe opinion also concluded that the district court did not err in applying a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) of the Guidelines.¹⁰ The mandate in Uribe issued February 7, 2017.

On April 11, 2017, a panel of this court issued an unpublished opinion in United States v. Herrold , which, dutifully applying Uribe , held that § 30.02(a) was indivisible, and that a conviction under that statute was generic "burglary."¹¹ Rehearing en banc was granted in Herrold , and Fuentes-Canales’s appeal was once again administratively held by our court, this time pending the court’s en banc decision in Herrold .

The en banc court in Herrold considered how Texas state courts have construed and applied Texas Penal Code § 30.02(a)(1) and (a)(3), and this court concluded that § 30.02(a)(1) and (a)(3) are indivisible within the meaning of Mathis because they "are not distinct offenses, but are rather separate means of committing one burglary offense."¹² The en banc court further held that § 30.02(a)(3)"is broader than generic burglary."¹³ Accordingly, § 30.02(a) was overinclusive because it included a means of committing an offense that did not have the requisite elements of generic burglary.¹⁴ The Uribe decision was expressly overruled to the extent that it is inconsistent with Herrold .¹⁵

Fuentes-Canales’s appeal was assigned to this panel, and we expedited our consideration of the issues he raises.

III

Because Fuentes-Canales failed to object to the 16-level enhancement in the district court, our review is for plain error under Federal Rule of Criminal Procedure 52(b).¹⁶ "[T]he authority created by Rule 52 is circumscribed."¹⁷ The Supreme Court has "established three conditions that must be met before a court may consider exercising its discretion to correct the error."¹⁸ "There must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ "¹⁹ If these conditions are met, the Supreme Court has said that " Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ "²⁰ This latter limitation is often described as the fourth prong of plain error review.²¹ "Meeting all four prongs [of plain-error review] is difficult, ‘as it should be.’ "²²

A

The first and second prongs of plain-error review are satisfied because the district court clearly erred in applying the 16-level enhancement. When Fuentes-Canales was sentenced, the Sentencing Guidelines provided for a 16-level increase in a defendant’s base offense level if he or she previously was removed after being convicted of a "crime of violence."²³ A "crime of violence," as defined in the commentary to the 2014 Guidelines, included the enumerated offense of "burglary of a dwelling."²⁴ To determine whether the Texas offense of burglary of a habitation is equivalent to "burglary of a dwelling," courts apply the categorical approach to compare the offense as defined by the Texas statute with the "generic" definition of burglary of a dwelling.²⁵ If the statute does not require that at least each of the elements of generic burglary must be found by the fact-finder or admitted by the defendant, then the state offense is not generic and therefore is not an enumerated crime of violence.²⁶

We have applied the generic definition of burglary in the Armed Career Criminal Act (ACCA)²⁷ to define the enumerated offense of "burglary" in the Sentencing Guidelines.²⁸ The principles governing the categorical approach, and the methods announced in Mathis for determining whether a statute is divisible, also apply when ascertaining whether a prior conviction was for "burglary" within the meaning of the Sentencing Guidelines.²⁹ As used in the Guidelines’ definition of "crime of violence," "burglary of a dwelling" is a subset of "generic" burglary.³⁰

As discussed above, this court held in United States v. Herrold , that Texas Penal Code § 30.02(a)(3) sets forth a means of committing an offense that is not generic burglary under the ACCA, and §§ 30.02(a)(1) and (a)(3) are not divisible.³¹ Accordingly, a conviction under § 30.02(a)(1) or (a)(3) is not for generic burglary within the meaning of the Guidelines.³² Fuentes-Canales was convicted under subsections (a) and (d) of § 30.02. Subsection (d) is essentially, though not precisely, a combination of subsections (a)(1) and (a)(3) from an elements standpoint. Subsection (d) provides that unlawfully entering a habitation is a first-degree felony if "any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft."³³ Like subsection 30.02(a)(3), the defendant need not have the intent to commit a felony at the time of unlawful entry, and therefore a conviction under § 30.03(d) is not for generic burglary.³⁴

The district court’s error in applying a 16-level enhancement for the conviction under § 30.02(a) and (d) is clear because "as long as the error was plain as of ... the time of appellate review ... the error is ‘plain’ within the meaning of the Rule. And the Court of Appeals ‘may ... conside[r]’ the error even though it was ‘not brought to the [trial] court's attention.’ "³⁵ This court’s decision in Herrold is now the law of this Circuit.

B

To satisfy the third prong of plain-error review, "the defendant ordinarily must ‘show a...