UNITED STATES of America, Plaintiff-Appellee, v. Rene MARTINEZ-GARCIA, also known as Jesus Renosa Geraldo, also known as Rene Martinez, also known as Rene Martinez-Garcia, Defendant-Appellant.
No. 09-20587.
United States Court of Appeals, Fifth Circuit.
Oct. 27, 2010.
196
For the reasons stated above, the judgment of the district court is AFFIRMED.
fore the market at large) would attribute the allegedly misleading statement to the defendant. At the complaint stage a plaintiff can plead fraud-on-the-market reliance by alleging facts from which a court could plausibly infer that interested investors would have known that the defendant was responsible for the statement at the time it was made, even if the statement on its face is not directly attributed to the defendant. Id. at 124 (citations omitted) (emphases added).
The court explicitly cabined its holding to the “limited context of fraud-on-the-market,” declining to “establish an attribution standard for all reliance inquiries.” Id. at 123. Our case is not a fraud-on-the-market case. Although we have some concern about whether the Fourth Circuit‘s standard comports with the Supreme Court‘s stated goals of “certainty and predictability” in securities law and, accordingly, whether we would adopt that standard for the fraud-on-the-market context, we need not decide that today.
Marjorie A. Meyers, Fed. Pub. Def., Sarah Beth Landau, Molly Estelle Odom, Asst. Fed. Pub. Defenders, Houston, TX, for Defendant-Appellant.
Before BARKSDALE, STEWART and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
This appeal solely concerns a sentence enhancement. The issue is whether the defendant‘s prior conviction under Georgia law was for a crime of violence. We conclude that it was and AFFIRM.
I. Statement of Facts
Rene Martinez-Garcia pled guilty to illegal reentry into the United States after being deported following a conviction for an aggravated felony. The Presentence Report (“PSR“) assigned a base offense level of eight. A 16-level enhancement was applied due to a 2002 conviction for burglary in Georgia, which the PSR recommended be classified as a crime of violence. The PSR then reduced the offense level by three for acceptance of responsibility. A total offense level of 21 combined with a criminal history category of V resulted in a Sentencing Guidelines range of 70-87 months of imprisonment.
Martinez-Garcia objected to the 16-level enhancement. He argued that the Georgia offense of burglary did not constitute the Guidelines’ enumerated offense of burglary of a dwelling. The probation officer agreed and prepared an addendum to the PSR that eliminated the enhancement.
The district court overruled the objection, adopted the original PSR, applied the crime of violence enhancement, and entered a sentence within the Guidelines range of 78 months of imprisonment. Martinez-Garcia appealed.
II. Discussion
This court reviews “the district court‘s interpretation and application of the Sentencing Guidelines de novo.” United States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir.2006) (citation omitted). If this court finds error, it must determine whether the error was harmless. United States v. Lopez-Urbina, 434 F.3d 750, 765 (5th Cir.2005) (citation omitted).
Martinez-Garcia argues the district court erred in holding that his Georgia conviction of burglary qualified as a “crime of violence.” Further, the error could not be harmless because without the crime of violence enhancement, he would have been subject to a lower Guidelines sentencing range.
The substance of the argument now is the same as it was at sentencing, namely, that the Georgia offense of burglary does not qualify as the Guidelines’ enumerated crime of violence of “burglary of a dwelling” because Georgia courts interpret “dwelling” to include structures within the curtilage thereof. We disagree. As we explain, the term “dwelling” within the
The Guidelines include “burglary of a dwelling” as a “crime of violence,” but the crime is not defined.
“The ‘ordinary, contemporary, common meaning’ of ‘burglary of a dwelling’ does not extend to the grounds around the dwelling,” and demands an entry into or remaining in the dwelling. United States v. Gomez-Guerra, 485 F.3d 301, 304 (5th Cir.2007) (citation omitted). The commonly understood meaning of a dwelling is “a house or other structure in which a person lives.” United States v. Mendoza-Sanchez, 456 F.3d 479, 482 (5th Cir.2006) (quotation marks omitted). The dwelling “does not extend to the grounds around the dwelling,” i.e., the curtilage. Gomez-Guerra, 485 F.3d at 304. If a state burglary statute may be violated by entry only into the curtilage, a conviction under that statute is not a crime of violence. Id. at 303-04.
To identify the prior conviction‘s scope, we start with an examination of the statute. Id. at 303. The present Georgia burglary statute, in effect for Martinez-Garcia‘s 2002 conviction, states:
A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within [1] the dwelling house of another or [2] any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or [3] enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.
Where a statute is divisible, as it is here, we apply a “modified categorical approach” by examining certain adjudicative records. United States v. Gonzalez-Terrazas, 529 F.3d 293, 297 (5th Cir.2008). The record of conviction, which contains the “Accusation,” states Martinez-Garcia was charged with having “entered the dwelling house of another” at a certain address.
Martinez-Garcia‘s argument seeks to make two separate points. First, he asserts that a reference to a dwelling house in a charging instrument under Georgia law historically has included structures within the curtilage of the dwelling. Second, he argues that despite a statutory change, the Georgia courts still interpret the statute as they did under prior caselaw.
In the past, Georgia courts have interpreted “dwelling house” to include particular buildings within the curtilage. E.g., King v. State, 99 Ga. 52, 25 S.E. 613 (1896); Daniels v. State, 78 Ga. 98 (1886); Bryant v. State, 60 Ga. 358 (1878). These cases were decided under a prior statute, though, which explicitly stated that “outhouses . . . within the curtilage . . . of the dwelling house shall be considered as parts of the same.”
Martinez-Garcia persists. He considers Sanders’ citation to the pre-amendment case of Mash to undermine the quoted definition of “dwelling house.” Specifically, because Sanders quoted a definition from precedent interpreting the prior statute, Martinez-Garcia argues that the definition of “dwelling house” implicitly included structures within its curtilage. Thus, when Sanders cited Mash, it brought along the meaning of “dwelling house” that applied in 1954 when Mash was decided.
This argument, though ably made, is unreasonable. The Georgia court in Sanders was addressing the difference between completed residences and those under construction, not outhouses compared to dwellings. Id. at 397-99. Sanders found in Mash a source for the useful quote that a “dwelling house” was “a residence or habitation” used as an abode. Id. at 399.
We conclude that none of the Georgia opinions interpreting the current version of the Georgia burglary statute has held that a “dwelling house” includes structures within the curtilage. The current statute has other provisions that allow for conviction if entry is into certain other buildings, but those structures are not “dwelling houses.”
The term “dwelling” within the Georgia burglary statute comports with the ordinary, contemporary definition of that term.
Accordingly, the district court did not err in applying the 16-level crime of violence enhancement when sentencing Martinez-Garcia, as his prior conviction of burglary under Georgia state law falls within the scope of the Guidelines offense of “burglary of a dwelling.” Because there was no error, we do not consider Martinez-Garcia‘s argument as to whether the error was harmless.
AFFIRMED.