United States v. Islas-Saucedo, 091118 FED5, 16-40672

Docket Nº:16-40672
Opinion Judge:CARL E. STEWART, CHIEF JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee v. JESUS ISLAS-SAUCEDO, Defendant-Appellant
Judge Panel:Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit Judges.
Case Date:September 11, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee

v.

JESUS ISLAS-SAUCEDO, Defendant-Appellant

No. 16-40672

United States Court of Appeals, Fifth Circuit

September 11, 2018

Appeals from the United States District Court for the Southern District of Texas

Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit Judges.

CARL E. STEWART, CHIEF JUDGE.

Jesus Islas-Saucedo appeals the sentence imposed following his guilty plea conviction for illegal reentry after having been deported. In this appeal, he contends that the district court improperly enhanced his base offense level by 12 levels under U.S.S.G. Manual § 2L1.2(b)(1)(A)(ii) (U.S. Sentencing Comm'n 2015) and that this erroneously increased his U.S. Sentencing Guidelines range. His argument is predicated on his contention that his 1990 Texas conviction for burglary of a habitation under Texas Penal Code § 30.02(a)(1) is not a crime of violence. More specifically, relying on Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), he asserts that the Texas statute is indivisible and does not comport with the generic crime of burglary of a habitation.

While Islas-Saucedo's appeal was pending, this court held in United States v. Herrold, 883 F.3d 517, 517 (5th Cir. 2018) (en banc) that a conviction under the same Texas burglary statute is not a violent felony under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii).1 Given the court's ruling in Herrold, the Government concedes that Islas-Saucedo is entitled to a vacated sentence, though it requests that we delay ruling until the Supreme Court has considered whether to review our decision on the Texas burglary statute. We reject that suggestion and VACATE and REMAND for re-sentencing.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 28, 2015, Islas-Saucedo was charged by a one-count indictment with being unlawfully present in the United States after deportation subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). On January 26, 2016, without a plea agreement, Islas-Saucedo entered a plea of guilty to the indictment.

Using the 2015 edition of the Sentencing Guidelines, the pre-sentence investigation report ("PSR") calculated the total offense level to be 17, by: (1) starting with a base offense level of eight, pursuant to § 2L1.2(a); (2) adding 12 levels pursuant to § 2L1.2(b)(1)(A)(ii), on the ground that Islas-Saucedo's 1990 Texas felony conviction for burglary of a habitation was a "crime of violence" that was not assessed any criminal history points; and (3) subtracting three levels pursuant to § 3E1.1(a) and (b) for timely acceptance of responsibility. A total offense level of 17, coupled with Islas-Saucedo's criminal history category of IV, resulted in a Guideline imprisonment range of 37 to 46 months. Islas-Saucedo did not object to the PSR's Guideline calculations.

On May 2, 2016, the district court sentenced Islas-Saucedo to serve 42 months in the custody of the Bureau of Prisons and a three-year term of supervised release. Islas-Saucedo timely appealed.

On December 27, 2016, Islas-Saucedo, representing himself pro se, filed his opening brief. For the first time on appeal, Islas-Saucedo argues that the district court erroneously applied the 12-level crime of violence enhancement because (1) not all of the subsections of the Texas burglary statute, Tex. Penal Code § 30.02(a)(1)-(3), meet the definition of generic burglary, and (2) the modified categorical approach may not be used to narrow his offense because, under Mathis, 2 the Texas statute is indivisible. He argues that Mathis effectively overruled this court's precedent in United States v. Conde-Castaneda, 753 F.3d 172, 175-77 (5th Cir. 2014) (holding that a Texas burglary conviction under Texas Penal Code § 30.02(a)(1) constitutes generic burglary and, accordingly, is a crime of violence).

On May 4, 2017, the Government filed a motion for summary affirmance on the ground that this court has already rejected Islas-Saucedo's arguments in United States v. Uribe, 838 F.3d 667, 671 (5th Cir. 2016) (holding Texas Penal Code § 30.02(a) is divisible). This court denied the motion on September 26, 2017. However, on October 5, 2017, this court granted the Government's motion to stay further proceedings pending a ruling on the petition for rehearing en banc in Herrold.

This court issued its Herrold opinion on February 20, 2018. The Government concedes that under Herrold, the district court's application of the crime of violence enhancement pursuant to § 2L1.2(b)(1)(A)(ii) would be erroneous. See Herrold, 883 F.3d at 541 (holding Texas Penal Code § 30.02(a) is overbroad and indivisible). Nevertheless, the Government requests that this court hold the case in abeyance pending the Supreme Court's determination on the petitions for a writ of certiorari filed in Herrold and Quarles.3 See Petition for Writ of Certiorari, Herrold, 883 F.3d 517 (No. 17-1445); see also Petition for Writ of Certiorari, Quarles, 850 F.3d 836 (No. 17-778). To preserve its position, the Government challenges our holding in Herrold by arguing that Islas-Saucedo was properly subject to the ACCA enhancement under the Texas burglary statute. The Government maintains that (1) under the categorical approach, Texas Penal Code § 30.02(a) is a crime of violence because all of its subsections match a generic burglary offense, and (2) alternatively, the Texas burglary statute is divisible and, under the modified categorical approach, Islas-Saucedo's prior conviction is a crime of violence.4

II. STANDARD OF REVIEW

This court reviews "the district court's interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error." United States v. Johnson, 880 F.3d 226, 233 (5th Cir. 2018) (quoting United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010)). Because Islas-Saucedo failed to object in district court, the issue of whether his prior conviction is a crime of violence under § 2L1.2 is subject to plain error review. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (quoting United...

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