UNITED STATES of America, Plaintiff-Appellee, v. Juan GONZALEZ-TERRAZAS, also known as Juan Gonzalez-Derasas, Defendant-Appellant.
No. 07-50375.
United States Court of Appeals, Fifth Circuit.
May 22, 2008.
528 F.3d 293
EMILIO M. GARZA, Circuit Judge
M. Carolyn Fuentes, Henry Joseph Bemporad, Fed. Pub. Def., San Antonio, TX, for Defendant-Appellant.
Before GARZA, STEWART and OWEN, Circuit Judges.
In response to the Petition for Panel Rehearing filed by the Government, and having duly considered the response, we GRANT the petition and withdraw the prior panel opinion, 516 F.3d 357, in its entirety and substitute the following:
The defendant Juan Gonzalez-Terrazas appeals his sentence of 57 months imprisonment based on his guilty-plea conviction for unlawful reentry of an alien after removal in violation of
Gonzalez was removed from the United States in February 2005. In 2006, he was found in El Paso, Texas. He did not have permission to reenter the United States. Gonzalez was charged with and pleaded guilty to one count of illegal reentry following removal in violation of
Gonzalez argues that the district court plainly erred in applying the 16-level enhancement because, under this court‘s decision in United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007), a conviction under
We review the district court‘s application and interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). As Gonzalez concedes, because Gonzalez failed to object to the district court‘s imposition of the 16-level crime-of-violence enhancement, we review this issue for plain error. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir.2005). Plain error occurs when: “(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant‘s substantial rights.” Villegas, 404 F.3d at 358 (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If each of these conditions is satisfied, we may exercise our discretion to correct the error only if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Garza-Lopez, 410 F.3d at 272 (internal quotation marks omitted).
Applying the plain error analysis, we must first determine whether there was an error. Section
In Ortega-Gonzaga, this court analyzed the California offense of residential bur-
Acknowledging this court‘s decision in Ortega-Gonzaga, the Government concedes that the burglary offense defined by
However, the Government has not demonstrated that this case falls within that “narrow range of cases” in which a district court may look beyond the elements of an offense to classify that offense for sentence enhancement purposes. This court uses a categorical approach to determine whether an offense qualifies as an enumerated offense for sentence enhancement purposes under
The Government attempts to dismiss the court‘s discussion of this point as dictum because the court went on to conclude that “[i]n any event, ‘unlawful’ entry was not a part of Ortega‘s indictment or conviction.” Id. The footnoted language, however, was not dictum; it was one of two alternative holdings, and each is binding. See United States v. Wright, 496 F.3d 371, 375 n. 10 (5th Cir.2007) (“[I]t‘s well-settled that alternative holdings are binding, they are not dicta.“).
In light of Ortega-Gonzaga, the district court erred in applying the 16-level crime-of-violence enhancement based on the defendant‘s prior conviction under
Turning to the second prong of the plain error analysis, we must determine whether this error was clear and obvious. We conclude that this error was clear and obvious in light of our decision in Ortega-Gonzaga. Although Ortega-Gonzaga was decided after Gonzalez was sentenced, the error need only be plain at the time of appellate consideration. See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); see also United States v. Martinez-Vega, 471 F.3d 559, 561 (5th Cir.2006) (“[T]he Supreme Court has made clear that we determine whether the error was plain at the time of appellate consideration—not at the time of trial.“).
Finally, applying the last prong of the plain error analysis, we conclude that the error affected the defendant‘s substantial rights because there is “a reasonable probability that, but for the district court‘s misapplication of the Guidelines, [Gonzalez] would have received a lesser sentence.” Garza-Lopez, 410 F.3d at 275. With the erroneous enhancement, Gonzalez faced a guideline range of 57 to 71
In light of this substantial disparity, this plain error also affects the fairness of the judicial proceedings and warrants the exercise of our discretion to correct the error. See Garza-Lopez, 410 F.3d at 275 (concluding that the imposition of a sentence that was substantially greater than the guideline range affected the defendant‘s substantial rights “and the fairness of the judicial proceedings“). For these reasons, we VACATE Gonzalez‘s sentence and REMAND for RESENTENCING.
OWEN, Circuit Judge, concurring.
I join the court‘s opinion because we are bound by one of two alternative holdings in this Circuit‘s prior decision in United States v. Ortega-Gonzaga.1 I respectfully submit, however, that the holding in Ortega-Gonzaga is at odds with Congressional intent in establishing the Sentencing Guidelines and the intent of the Guidelines with regard to what courts have termed “enumerated offenses.” I urge our court to consider the issue en banc.
The case before us presents an important question: in determining if a prior conviction was for an enumerated “generic” offense within the meaning of the Guidelines, may we examine the underlying conviction to determine if it contained all the elements of the generic offense even though the statute of conviction did not? We have often examined records of a prior conviction when the statute of conviction could be violated in ways that constituted a generic enumerated offense and in ways that did not to determine if a defendant was convicted of a generic offense.2 However, it was not until Ortega-Gonzaga that we considered whether a prior conviction could be for a generic offense even if the statute of conviction was lacking one or more elements of the generic offense. I respectfully submit that if a defendant was charged with and a jury found all elements of a generic offense, or the defendant was charged with and pled guilty to such an offense, there has been a prior “conviction for” the generic offense even if the statute
The Sentencing Guidelines provision at issue in our case is
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the United States, after—
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels . . . .
A “crime of violence” is defined in the Commentary to include “burglary of a dwelling.”3
I agree with the conclusion in Ortega-Gonzaga that the Guidelines intended that the contemporary, generic meaning of “burglary of a dwelling” was to be applied and that the Supreme Court‘s interpretation of the contemporary, generic meaning of “burglary” in Taylor v. United States4 was what was intended by the Guidelines, with the added restriction that the burglary must have been of a dwelling. I am persuaded, however, that Ortega-Gonzaga unduly restricted the examination of what is “a conviction for a felony that is . . . burglary of a dwelling” to the elements contained in the statute of conviction.
Congress stated in the statute creating the Sentencing Commission that the intent of the Guidelines was, among other things, to “avoid[] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.”6 I submit that if a defendant was charged with and a jury found all the elements of generic burglary of a dwelling, or if a defendant so charged admitted to all elements of burglary of a dwelling, that defendant has a prior “conviction for” burglary of a dwelling within the meaning of
In Ortega-Gonzaga, the defendant had previously been convicted under a Califor-
At least two other circuit courts have held that courts may look beyond a statute that does not have the requisite elements of a generic enumerated offense to determine if the conviction did have those elements.11 The Ninth Circuit recognized, as this court recognizes in the case before us today, that
The Supreme Court‘s decisions in Taylor v. United States16 and Shepard v. United States17 do not unambiguously resolve the question before us. In Taylor, the Court recognized that its so-called “categorical approach” permitted examination of something other than the fact of conviction and the elements of the statute of conviction in some cases in which “the state statute under which a defendant is convicted varies from the generic definition” of an offense, in that case burglary,18 and the state statute defines the offense “more broadly, e.g., by eliminating the requirement that the entry be unlawful, or by including places, such as automobiles and vending machines, other than build-
If the Court had stopped there, it would seem clear that even if the statute of conviction did not include unlawful entry as an element of burglary, a conviction would nevertheless constitute burglary if a jury found that the defendant had entered unlawfully. However, in an example, although not necessarily a limiting one, the Court said that if a statute “include[d] entry of an automobile as well as a building” but “the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.”22 In that example, of course, the statute expressly criminalized entry of a building, and the conviction itself was examined only to determine if the conviction was for that offense rather than entry of an automobile, the latter of which the Court said was not generic burglary. What is not specifically addressed by example in the Taylor decision, and what we are left to ponder, is whether a conviction is to be used to enhance the sentencing range if the statute included a building as the locale and did not require unlawful entry, but a defendant was nevertheless charged with and a jury found unlawful entry of a building.
The final two paragraphs of the Court‘s holding in Taylor may be in some tension with one another in this regard as well. The Court said, “[w]e therefore hold that an offense constitutes ‘burglary’ for purposes of a
The subsequent paragraph of Taylor, however, may muddy the waters because it refers to the fact that “not all the former Missouri statutes defining second-degree burglary include all the elements of generic burglary,” and “it is not apparent to us from the sparse record before us which of those statutes were the bases for Taylor‘s prior convictions.”24 If the Court meant by this that the statutes were the beginning and ending points, and there is no need to consider the charging documents and jury findings, then Ortega-Gonzaga was correct. If, however, the Court‘s language simply did not give a detailed directive as to the steps necessary to give effect to its opinion in the event the statute of conviction did not include all the elements of generic burglary, then Ortega-Gonzaga has unduly restricted the analysis
The Supreme Court‘s decision in Shepard does not shed light on the present question.25 It simply held that courts may consider certain documentation in determining if a generic offense has been committed in cases in which the defendant pled guilty.26 It does not tell us whether courts may conclude there has been a conviction for a generic enumerated offense if the defendant was charged with and pled guilty to all the elements of a generic offense, but the statute of conviction lacks one or more of those elements.
In closing, to summarize, Congress has directed that one of the purposes of the Sentencing Guidelines is to “avoid[] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.”27 This means, to me, that when a defendant is charged with and is either found guilty of or admits to facts that constitute a generic offense, that offense should be treated as a generic offense even if the statute under which the defendant was prosecuted does not contain all those elements. The defendant in such a case has “been found guilty of similar [generic] conduct.”28 But for Ortega-Gonzaga, I would so hold. Because I am foreclosed by Circuit precedent, I do not reach whether Gonzalez-Terrazas‘s prior California conviction was one for generic burglary of a dwelling.