United States v. Jose Reyes-Ochoa, 2017 U.S. App. LEXIS 11706

Defendant Jose Darwin Reyes-Ochoa pled guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326.
Probation applied a 16-level "crime-of-violence" enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on prior Virginia statutory burglary convictions (Va. Code § 18.2‑90), yielding a 41–51 month Guidelines range.
The district court sentenced Reyes-Ochoa to 41 months; he did not object to the enhancement at sentencing and timely appealed.
On appeal, Reyes-Ochoa argued (relying on Mathis) that § 18.2‑90 is indivisible and broader than generic burglary, so the modified-categorical approach cannot be used and the enhancement was improper.
The Fifth Circuit held that, in light of Mathis and the Fourth Circuit’s Castendet-Lewis analysis, § 18.2‑90 is indivisible and sweeps more broadly than generic burglary; the imposed enhancement was a clear or obvious error that affected substantial rights.
The court vacated the sentence and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Virginia Code § 18.2‑90 is divisible for application of the modified‑categorical approach and thus supports a 16‑level § 2L1.2 COV enhancement	Reyes‑Ochoa: § 18.2‑90 is indivisible under Mathis and broader than generic burglary, so the enhancement was erroneous	Government: § 18.2‑90 is divisible (as to means/locations) and prior precedent (pre‑Mathis) supports using the modified‑categorical approach	The court held § 18.2‑90 is indivisible post‑Mathis; the COV enhancement was plain error that affected substantial rights, so sentence vacated and remanded for resentencing

Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from means; governs divisibility analysis)
Descamps v. United States, 133 S. Ct. 2276 (2013) (limits use of the modified‑categorical approach to divisible statutes)
Molina‑Martinez v. United States, 136 S. Ct. 1338 (2016) (showing a reasonable probability of a different sentence due to Guidelines error satisfies substantial‑rights prong)
Puckett v. United States, 556 U.S. 129 (2009) (elements of plain‑error review)
Taylor v. United States, 495 U.S. 575 (1990) (definition of generic burglary)
Castendet‑Lewis v. Sessions, 855 F.3d 253 (4th Cir. 2017) (concludes Virginia § 18.2‑90 is indivisible and broader than generic burglary)
Hinkle v. United States, 832 F.3d 569 (5th Cir. 2016) (discusses Mathis framework for elements vs. means)
Rosales‑Mireles v. United States, 850 F.3d 246 (5th Cir. 2017) (Guidelines‑range error often establishes prejudice under Molina‑Martinez)