902 F.3d 468
5th Cir.2018Background
- Fuentes-Canales, a Salvadoran national, pleaded guilty to illegal reentry under 18 U.S.C. § 1326 after being deported following a Texas conviction for burglary of a habitation (Tex. Penal Code § 30.02(a), (d)).
- The Presentence Report characterized the Texas conviction as "burglary of a dwelling," and the district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), producing a Guidelines range of 46–57 months; the court sentenced him to 50 months.
- Fuentes-Canales did not object to the 16-level enhancement at sentencing and later appealed, arguing his Texas conviction is not generic burglary and thus did not qualify for the enhancement.
- While the appeal was pending the Fifth Circuit decided en banc in United States v. Herrold that Tex. Penal Code § 30.02(a) is indivisible and § 30.02(a)(3) is broader than generic burglary, meaning convictions under § 30.02(a) generally do not qualify as generic burglary.
- The panel concluded the district court plainly erred in applying the 16-level enhancement under the now-governing Herrold rule, but affirmed the sentence because Fuentes-Canales failed to meet the fourth prong of plain-error review.
- The court relied on the state-court record and PSR facts (including jury findings that a deadly weapon was used and written jury instructions/indictment) showing the jury necessarily found either generic burglary or aggravated assault (a "crime of violence"). The Fifth Circuit exercised discretion not to correct the error under Olano/Rosales-Mireles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fuentes-Canales’s Texas conviction qualifies as "generic burglary" for U.S.S.G. § 2L1.2 enhancement | Fuentes-Canales: § 30.02(a)/(d) is broader than generic burglary and thus does not qualify | Government: prior precedent treated § 30.02 convictions as generic burglary supporting enhancement | Held: Under en banc Herrold, § 30.02(a)/(d) is not generic burglary; applying the 16-level enhancement was error |
| Standard of review for unobjected-to sentencing error | Fuentes-Canales: plain error review applies and the enhancement was plain error | Government: enhancement was proper when applied; alternatively, no plain-error relief warranted | Held: Review is plain error under Fed. R. Crim. P. 52(b); first two prongs (error, plain) satisfied given Herrold |
| Whether the third prong (substantial rights/reasonable probability of different outcome) is met | Fuentes-Canales: incorrect range (18–24 months without enhancement) would likely have produced a lower sentence | Government: sentencing judge might still have imposed similar sentence | Held: Court assumed, without deciding, that the third prong could be met (reasonable probability of different outcome) |
| Whether to correct the error under the fourth prong (fairness, integrity, public reputation) | Fuentes-Canales: miscalculated Guidelines range warrants vacatur and resentencing per Rosales-Mireles | Government: countervailing factors (jury findings and PSR facts) preserve integrity absent correction | Held: Court declined to correct the error—fourth prong not satisfied—because the record shows jury found facts (generic burglary or aggravated assault and weapon use) supporting treatment equivalent to a crime of violence; sentence affirmed |
Key Cases Cited
- United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc) (Tex. § 30.02(a) indivisible and § 30.02(a)(3) broader than generic burglary)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) (clarifies fourth prong of plain-error review and when appellate courts should exercise discretion to correct sentencing errors)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility analysis and categorical approach for prior convictions)
- United States v. Olano, 507 U.S. 725 (1993) (framework for plain-error review under Rule 52(b))
- Taylor v. United States, 495 U.S. 575 (1990) (defining "generic burglary" for categorical comparison)