United States v. Frey Perlaza-Ortiz, 869 F.3d 375

Defendant Frey Perlaza-Ortiz, a Colombian citizen, pleaded guilty to unlawful reentry and had a prior Texas conviction under Tex. Penal Code § 22.05(b).
At sentencing the district court applied a 16‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) treating the Texas conviction as a "crime of violence," producing an offense level of 21.
The court departed on criminal history to Category II and imposed a 41‑month sentence (the bottom of the post‑departure guideline range).
Perlaza‑Ortiz argued the § 22.05(b) conviction is not divisible and therefore cannot serve as a crime‑of‑violence predicate; he asserted only an 8‑level enhancement was appropriate.
The Fifth Circuit, applying Mathis’s divisibility framework, concluded § 22.05(b) is not divisible and that the district court’s enhancement was legal error; the court also held the error was not harmless and vacated the sentence and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tex. Penal Code § 22.05(b) is divisible such that the modified categorical approach may be used to treat a prior conviction as a "crime of violence"	Perlaza‑Ortiz: § 22.05(b) lists alternative means (discharging at individuals vs. at habitations/buildings/vehicles) and is indivisible, so cannot support a § 2L1.2 crime‑of‑violence enhancement	Government: Pre‑Mathis precedent treated § 22.05(b) as divisible and § 22.05(b)(1) is a crime of violence, so the enhancement applies	Held: § 22.05(b) is not divisible under Mathis; the government did not prove divisibility, so the statute cannot be used as the predicate for the enhancement
Whether the district court’s error in applying the enhancement was harmless	Perlaza‑Ortiz: The sentence was influenced by the incorrect guideline range and should be vacated	Government: Any error was harmless because the court said it would impose the same sentence under 18 U.S.C. § 3553(a) factors	Held: Error was not harmless; selection of the bottom of the incorrect guideline range indicates influence, so vacatur and remand required

United States v. Rodriguez, 711 F.3d 541 (5th Cir.) (standard of de novo review for whether a prior conviction qualifies as a crime of violence)
United States v. Tanksley, 848 F.3d 347 (5th Cir.) (divisibility analysis and harmless‑error standard for sentencing errors)
Mathis v. United States, 136 S. Ct. 2243 (2016) (framework for distinguishing elements from means and limiting the modified categorical approach)
United States v. Hinkle, 832 F.3d 569 (5th Cir.) (Mathis controls methodology for modified categorical approach)
United States v. Hernandez‑Montes, 831 F.3d 284 (5th Cir.) (government’s burden to show sentence was not influenced by erroneous Guidelines)
United States v. Martinez‑Romero, 817 F.3d 917 (5th Cir.) (selection of the bottom of an incorrect guideline range evidences influence by the error)