United States v. Felix Uribe

See case details

UNITED STATES of America, Plaintiff-Appellee v. Felix URIBE, also known as Francisco Servin Luna, Defendant-Appellant

No. 15-51223

United States Court of Appeals, Fifth Circuit.

Filed October 3, 2016

667

Joseph H. Gay, Jr., Mara Asya Blatt, Esq., Assistant U.S. Attorneys, U.S. Attorney‘s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee. Gerald Conway Moton, Esq., Moton Law Office, San Antonio, TX, for Defendant-Appellant.

L.Ed.2d 392 (1980); accord

Ignacio v. Judges of the United States Court of Appeals for Ninth Circuit, 453 F.3d 1160, 1163 (9th Cir. 2006). The appellants correctly suggest that disqualification of every judge whom they accuse of bias would allow no judge on this court to adjudicate the case. Accordingly, the Rule of Necessity qualifies the judges of this court to both hear and decide this appeal. See

Will, 449 U.S. at 213, 101 S.Ct. 471; see also

In re City of Houston, 745 F.2d 925, 930 n.9 (5th Cir. 1984) (under the Rule of Necessity, “where all are disqualified, none are disqualified” (citation and internal quotation marks omitted)).

The existence of qualified judges in other circuits does not undercut the applicability of the Rule of Necessity and does not require transferring the case where an appellant indiscriminately names all judges on a court or, as here, the court itself as defendants. E.g.,

Ignacio, 453 F.3d at 1164-65;

Tapia-Ortiz v. Winter, 185 F.3d 8, 10 (2d Cir. 1999); see also

City of Houston, 745 F.2d at 930-31 n.9 (noting that an otherwise disqualified judge can invoke the rule of necessity to hear a case if all judges in his district are disqualified even if there are qualified judges in other districts).

Second, as to the appellants’ alternative motion for an extension of time to file their brief, the appellants’ brief on appeal was due on August 24, 2016. Under our Fifth Circuit Rule 31.4.1(a), “the clerk must receive a request for extension at least seven days before the due date, unless the movant demonstrates, in detail, that the facts that form the basis of the motion either did not exist earlier or were not and with due diligence could not have been known earlier.” Here, the clerk received the appellants’ motion for an extension on August 26, two days after the due date, and the appellants do not even attempt to make the required showing under Rule 31.4.1(a).

Accordingly, the appellees’ motion to transfer is DENIED, their alternative motion for an extension of time is likewise DENIED, and the appellees’ motion to dismiss is GRANTED. The appeal is DISMISSED for want of prosecution.

IT IS SO ORDERED.

Joseph H. Gay, Jr., Mara Asya Blatt, Esq., Assistant U.S. Attorneys, U.S. Attorney‘s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Gerald Conway Moton, Esq., Moton Law Office, San Antonio, TX, for Defendant-Appellant.

Before REAVLEY, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Felix Uribe pled guilty to violating 8 U.S.C. § 1326 for illegally reentering the United States after being deported. Because Uribe had previously been convicted of burglary of a habitation in Texas, see Tex. Penal Code § 30.02(a), his presentence report included, and the district court applied, a 16-level crime of violence enhancement to Uribe‘s base offense level pursuant to the Sentencing Guidelines. U.S.S.G. § 2L.2(b)(1)(A)(ii). This court has previously held that Tex. Penal Code § 30.02(a)(1) defines a generic burglary of a dwelling within the scope of this enhancement. The question Uribe raises here is whether our precedent must be altered in light of

Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). We hold it does not and affirm the sentence.

Although Uribe‘s judicial confession to burglary of a habitation does not expressly state whether he violated § 30.02(a)(1) or (a)(3), he effectively confessed to violating both provisions when he admitted he “unlawfully . . . intentionally and knowingly entered a habitation . . . with the intent to commit theft,” see id. § 30.02(a)(1), and “did unlawfully . . . intentionally and knowingly enter a habitation and then and there commit and attempt to commit theft,” see id. § 30.02(a)(3).¹

The district court overruled Uribe‘s objection to the 16-level enhancement and sentenced Uribe to a term of imprisonment of 75 months, followed by a three-year term of supervised release. The district court added that it would have imposed the same sentence due to Uribe‘s criminal history and the 18 U.S.C. § 3553(a) sentencing factors even if the crime of violence enhancement was incorrect. Uribe timely appealed.

DISCUSSION

The district court‘s enhancement was proper under the Sentencing Guidelines, which authorize a 16-level increase in sentencing range for committing a prior “crime of violence.” U.S.S.G. § 2L.2. This court has held that under the modified categorical approach, Texas Penal Code § 30.02(a) is a divisible statute, and that § 30.02(a)(1) matches the generic definition of “burglary of a dwelling” because it comprises the elements of “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”

United States v. Murillo-Lopez, 444 F.3d 337, 341 (5th Cir. 2006) (quoting

Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607

(1990)). This subsection falls within the guidelines’ relevant definition of a crime of violence.

United States v. Conde-Castaneda, 753 F.3d 172, 175-79 (2014). The issue in this case is whether the Supreme Court‘s recent decision in

Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) disturbs Conde-Castaneda. We hold that it does not.

Mathis applied the categorical approach to a state burglary statute that contained alternative means to satisfy one of its elements. In so doing, Mathis provided helpful guidance for determining whether a predicate statute of conviction is divisible.

United States v. Howell, No. 15-10336, 838 F.3d 489, 496-97, 2016 WL 5314661, at *6 (5th Cir. Sept. 22, 2016). A statute that outlines only various means of committing the predicate offense is not divisible, whereas a statute that sets forth alternative elements of each offense is divisible.

Mathis, 136 S.Ct. at 2256. The difficulty, however, lies in ascertaining whether the state statute contains alternative means or elements. A federal court should defer to state law in making this determination.

Id. at 2250. A sentencing judge may consider state court rulings, the face of the statute, the statute‘s structure, and “if state law fails to provide clear answers,” a judge may consider the record of prior conviction.

Id. at 2256-57 & n.7.

The Texas burglary statute is elements-based. The statute provides:

(a) A person commits an offense if, without the effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with in-tent to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

Tex. Penal Code § 30.02(a).² A statutory list that provides “illustrative examples,” is a clear indication that the statute “includes only a crime‘s means of commission.”

Mathis, 136 S.Ct. at 2256. Unlike the state statute at issue in Mathis, which criminalized the unlawful entry into “any building, structure, [or] land, water, or air vehicle,” Iowa Code § 702.12, the Texas burglary statute does not provide an illustrative list or outline multiple ways to satisfy a single element.

Id. at 2250.

Important to this means-elements inquiry is also whether a state‘s highest court has described the statute as constituting means or elements. The Texas Court of Criminal Appeals—Texas‘s highest court for criminal cases—classifies this statute as elements-based.

Day v. State, 532 S.W.2d 302, 305-06 (Tex. Crim. App. 1975), abrogated on other grounds,

Hall v. State, 225 S.W.3d 524, 527-31 (Tex. Crim. App. 2007) (“The elements of the three types of burglary are set out following . . . As can be seen, the first three elements of each of the three types of burglary and criminal trespass are virtually identical. The fourth main element of burglary . . . is absent from the offense of criminal trespass.” (emphases added)); see also

Devaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988) (stating that under § 30.02(a)(1) “[p]roof of the intent to commit either theft or felony was, and is, a necessary element in the State‘s case” (emphasis added)). Bolstered by Mathis, we conclude that each provision of the statute sets forth elements, not means.

Because the predicate statute is elements-based, it is divisible and the modified categorical approach applies to determine which of the provisions of § 30.02(a) was the basis of Uribe‘s conviction.

Mathis, 136 S.Ct. at 2249. Uribe confessed to violating § 30.02(a)(1) and (a)(3), and he was convicted under § 30.02(a). In applying the modified categorical approach, Uribe‘s conviction must be compared with the generic offense of burglary.

Id. Uribe confessed to knowingly entering the victim‘s habitation with the intent to commit felony theft. This was sufficient to constitute a violation of § 30.02(a)(1), which aligns with the generic offense of burglary, and constitutes a “burglary of a dwelling” under the Sentencing Guidelines.

Conde-Castaneda, 753 F.3d at 176. Uribe‘s crime of violence enhancement was proper.

CONCLUSION

For the foregoing reasons, the sentence is AFFIRMED.

Notes

1

Uribe contends that ambiguity pervades the indictment, judicial confession, and judgment. We disagree. The judgment does not specify whether Uribe was convicted under § 30.02(a)(1) or (a)(3); it convicts him under § 30.02 generally. However, the indictment charged him with unlawful entry into a woman‘s house with intent to commit sexual assault (violation of § 30.02(a)(1)) and unlawful entry with the commission or attempted commission of sexual assault (violating § 30.02(a)(3)). That Uribe pled down to admitting theft rather than sexual assault in these two charges is material only to their classification in Texas law as first or second degree felony offenses. What is significant, however, is the connection between his judgment, the judicial confession and the indictment. The indictment charged Uribe with violating each of these noted subsections. Even though the judicial confession does not cite the statutory subsections, the language of the confession precisely tracks the language of each subsection. There is no ambiguity; Uribe cannot escape the enhancement by pointing to distinctions without a difference.

2

This version of the Texas burglary statute, Tex. Penal Code § 30.02(a), was later amended to include “assault” in every subsection. This, however, does not change the court‘s elements-means analysis. CRIMES AND OFFENSES—CORRECTIONAL INSTITUTIONS—CRIMINAL PROCEDURE, 1995 Tex. Sess. Law Serv. Ch. 318 (S.B. 15) (VERNON‘S).

Case Details

Case Name: United States v. Felix Uribe

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 3, 2016

Citation: 838 F.3d 667

Docket Number: 15-51223

Court Abbreviation: 5th Cir.