United States v. Lazaro Ramirez-Flores
2014 U.S. App. LEXIS 3280
| 11th Cir. | 2014Background
- Defendant Lazaro Ramirez-Flores, a Mexican national, pled guilty in 2012 to illegal re-entry after deportation; at sentencing the Probation Office recommended a Guidelines range of 46–57 months based on a 16-level enhancement.
- The 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) applies when an alien has a prior felony that is a "crime of violence," which the Guidelines comment lists to include "burglary of a dwelling."
- Ramirez-Flores had a 2007 South Carolina conviction under S.C. Code § 16-11-312(A) for second-degree burglary; the PSI (¶28) described the conduct as forcibly entering the victim’s residence with a co-defendant and removing property.
- The South Carolina statutory definition of “dwelling” includes structures where someone sleeps and appurtenant structures (e.g., sheds) within 200 yards, so the state statute can cover conduct broader than the federal "generic" burglary of a dwelling.
- At sentencing Ramirez-Flores objected generally to the enhancement and to the PSI paragraph but did not plainly preserve the argument later raised on appeal (that § 16-11-312(A) is indivisible under Descamps); the district court overruled the objections and applied the enhancement.
- On appeal the Eleventh Circuit (majority) affirmed, holding (1) Ramirez-Flores’s new Descamps-based indivisibility argument was reviewed only for plain error and was not plainly meritorious, and (2) the district court permissibly relied on undisputed PSI facts under the modified categorical approach to conclude the prior conviction was for burglary of a residence.
Issues
| Issue | Ramirez-Flores' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether S.C. § 16-11-312(A) is divisible for applying the modified categorical approach | § 16-11-312(A) is indivisible; because it sweeps beyond generic burglary, a conviction under it can never qualify as a "crime of violence" | The statute is not plainly indivisible; it may be divisible because the statutory definition of "dwelling" creates alternative elements | Reviewed for plain error; not plain that statute is indivisible, so appellant’s new Descamps claim fails |
| Whether the modified categorical approach may be used to determine if the prior offense matches generic burglary | N/A on this issue at time of sentencing (initial briefs urged modified categorical approach) | Modified categorical approach applies if statute is divisible and Shepard documents establish which alternative was the basis | Court applied the modified categorical approach (parties had urged its use) |
| Whether the Shepard/PSI materials show the conviction was for burglary of a residence (generic burglary) | Government had not proved generic burglary absent clear Shepard documents; ambiguity exists | PSI ¶28 and state indictment/ judgment show entry into the victim’s dwelling; PSI facts were undisputed at sentencing | Defendant failed to make a specific factual objection to PSI ¶28; court properly relied on undisputed PSI/Shepard documents to find burglary of a residence |
| Standard of review for the Descamps/indivisibility claim | De novo (argued on appeal) | Plain-error review because the specific Descamps argument was not raised below | Plain-error review applies; defendant did not show a plain error and thus loses on that argument |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishes the categorical approach for prior-offense enhancements)
- Descamps v. United States, 570 U.S. 254 (clarifies limits of categorical vs. modified categorical approaches and divisibility requirement)
- Shepard v. United States, 544 U.S. 13 (authorizes limited judicial review of plea/conviction documents for determining the crime of conviction)
- United States v. Bennett, 472 F.3d 825 (11th Cir.) (PSI undisputed facts may be considered under the modified categorical approach)
- Donawa v. U.S. Attorney Gen., 735 F.3d 1275 (11th Cir.) (application of Descamps principles in this circuit)