United States v. Jesus Montalvo Davila
688 F. App'x 285
| 5th Cir. | 2017Background
- Defendant Jesus Leonardo Montalvo Davila pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2).
- The presentence report applied a 16‑level Sentencing Guidelines enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a 2012 Texas conviction for burglary of a habitation (Tex. Penal Code § 30.02(a)).
- The enhancement turns on whether the Texas conviction qualifies as a “burglary of a dwelling” (generic burglary) under the Guidelines.
- The parties disputed whether Texas § 30.02(a) is divisible and whether the modified categorical approach can identify which subsection (a)(1) vs (a)(3)) Montalvo was convicted under.
- Montalvo argued that Mathis v. United States undermined prior Fifth Circuit precedent (Conde‑Castaneda) and that the record does not show he was convicted under subsection (a)(1), which qualifies as generic burglary.
- The panel relied on Fifth Circuit precedent (including Uribe) holding § 30.02(a) divisible and concluded the indictment language tracked § 30.02(a)(1), so the enhancement was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas Penal Code § 30.02(a) is divisible for purposes of the modified categorical approach | Montalvo: Mathis requires treating alternate means as indivisible, so the modified categorical approach cannot be used | Government: Fifth Circuit precedent treats § 30.02(a) as divisible; court may consult record to identify the subsection | § 30.02(a) is divisible; modified categorical approach applies |
| Whether Montalvo’s record shows conviction under subsection that qualifies as generic burglary | Montalvo: state documents do not explicitly identify (a)(1) vs (a)(3) | Government: indictment language tracked § 30.02(a)(1); plea to that indictment supports enhancement | Record shows conviction aligned with (a)(1); enhancement proper |
| Whether applying the 16‑level enhancement was procedural error under advisory Guidelines review | Montalvo: applying enhancement without clear statutory match is error | Government: district court followed Fifth Circuit guidance and considered permissible documents | No procedural error; Guidelines application upheld |
| Standard of review for preserved Guidelines objections | Montalvo: (implicit) calls for de novo review of Guideline application | Government: applies Fifth Circuit standards | Court reviews Guidelines application de novo and facts for clear error; affirmed in this case |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (procedural reasonableness and standard of review for Guidelines post‑Booker)
- Mathis v. United States, 136 S. Ct. 2243 (limits on using the modified categorical approach when a statute lists alternative means)
- United States v. Conde‑Castaneda, 753 F.3d 172 (5th Cir.) (held § 30.02(a) divisible and (a)(1) qualifies as generic burglary)
- United States v. Uribe, 838 F.3d 667 (5th Cir.) (post‑Mathis decision affirming § 30.02(a) divisibility and application of modified categorical approach)