903 F.3d 512
5th Cir.2018Background
- Defendant Jesus Islas-Saucedo pled guilty to illegal reentry after deportation (8 U.S.C. §1326) and was sentenced to 42 months based on a Guidelines calculation that added a 12-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii) for a prior 1990 Texas burglary-of-a-habitation conviction.
- The PSR applied the 12-level "crime of violence" enhancement treating Texas Penal Code §30.02(a) burglary as qualifying; defendant did not object in district court but raised the issue on appeal.
- On appeal defendant argued, relying on Mathis, that §30.02(a) is indivisible and thus cannot be treated via the modified categorical approach to match the generic burglary definition.
- While the appeal was pending, this Court (en banc) decided United States v. Herrold, holding §30.02(a) indivisible and overbroad for ACCA purposes; the Government conceded the §2L1.2 enhancement was erroneous under Herrold.
- The Government asked for abeyance pending potential Supreme Court review; the Fifth Circuit declined and held the error was plain, affected substantial rights, and vacated and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas Penal Code §30.02(a) burglary conviction qualifies as a "crime of violence" under U.S.S.G. §2L1.2(b)(1)(A)(ii) | Islas-Saucedo: §30.02(a) is indivisible and broader than generic burglary, so it does not qualify | Government: §30.02(a) is categorically (or, alternatively, divisibly) a match to generic burglary; enhancement proper | Court: Error — Herrold controls; §30.02(a) is indivisible and overbroad, so the 12-level enhancement was improper |
| Whether the modified categorical approach may be used to identify the specific subsection of §30.02(a) | Islas-Saucedo: Mathis prohibits use because the statute lists alternative means (indivisible) | Government: precedents (pre-Herrold) permitted divisibility and use of the modified categorical approach | Court: Mathis and Herrold show §30.02(a) is indivisible; modified categorical approach not available |
| Whether the sentencing error is reviewable under plain-error standard and whether it was "clear or obvious" | Islas-Saucedo: though forfeited below, the error is clear now in light of Herrold | Government: contested earlier precedents; requested abeyance pending certiorari | Court: Under plain-error review (judged by law at time of appeal) the error was clear or obvious in light of Herrold |
| Whether the error affected substantial rights and warrants resentencing (and whether to hold appeal in abeyance) | Islas-Saucedo: incorrect higher Guidelines range likely changed outcome; resentencing needed | Government: urged abeyance pending Supreme Court review of related issues | Court: The incorrect range likely affected substantial rights; no abeyance — vacate and remand for resentencing |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (statute is indivisible when it lists alternative means; limits use of modified categorical approach)
- United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc) (held Texas Penal Code §30.02(a) indivisible and overbroad for burglary predicate)
- Taylor v. United States, 495 U.S. 575 (1990) (adopts generic, contemporary definition of burglary for sentence enhancements)
- Descamps v. United States, 570 U.S. 254 (2013) (distinguishes categorical and modified categorical approaches)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (incorrect Guidelines range generally shows reasonable probability of a different outcome)
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error review framework for forfeited claims)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) (clarifies appellate discretion under the fourth prong of plain-error review)