United States v. Israel Molina-Montiel, 685 F. App'x 343

Defendant Molina-Montiel pleaded guilty to illegal entry and was sentenced to 24 months after a prior Texas conviction was used to add eight offense points for an aggravated-felony enhancement.
The enhancement rested on treating Molina-Montiel's Texas conviction under Tex. Penal Code § 36.06 (obstruction/retaliation) as an obstruction-of-justice aggravated felony under the Sentencing Guidelines.
The Texas statute criminalizes harming or threatening to harm another in retaliation for or to prevent service/status as a public servant, witness, prospective witness, informant, or a person who reported or intends to report a crime.
The district court record did not show which specific subsection/factual basis of § 36.06 supported the conviction; no objection to the enhancement was raised at sentencing.
The Fifth Circuit examined whether the § 36.06 conviction necessarily matched the Guidelines’ narrower obstruction-of-justice definition and concluded the statute was broader and the record insufficient to establish a fit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a conviction under Tex. Penal Code § 36.06 qualifies as an obstruction-of-justice aggravated felony under the Guidelines	The government: Cada supports treating § 36.06 conviction as obstruction-of-justice for enhancement	Molina-Montiel: § 36.06 is broader than the Guidelines’ obstruction definition and the record does not identify the specific theory of conviction	Court: § 36.06 criminalizes broader conduct; the record does not show a matching offense element — no fit for enhancement
Whether applying the enhancement without a contemporaneous objection is reversible	Government: error (if any) is novel and not plain	Molina-Montiel: enhancement was erroneous and reviewable as plain error	Court: enhancement error is plain; the first three prongs met and the fourth (prejudice) satisfied — sentence vacated and case remanded for resentencing

United States v. Gamboa-Garcia, 620 F.3d 546 (5th Cir. 2010) (defines Guidelines obstruction-of-justice enhancement requirements)
Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) (discusses plea/indictment practices and permissive jury findings under § 36.06)
Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991) (explains alternate pleading/disjunctive jury findings and lack of unanimity on alternative theories)
Schad v. Arizona, 501 U.S. 624 (1991) (plurality opinion on juror unanimity and alternative theories of offense)