Case: 15-41476       Document: 00514623814        Page: 1   Date Filed: 08/30/2018




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                      No. 15-41476                      August 30, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff–Appellee,

v.

CARLOS ALBERTO FUENTES-CANALES, also known as Carlos Alberto
Fuentes,

                                                 Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas


Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      The petition for panel rehearing is denied. We withdraw the opinions
issued May 22, 2018, and substitute the following opinion.
      Carlos Alberto Fuentes-Canales pleaded guilty to re-entering the United
States illegally, an offense under 18 U.S.C. § 1326. He had previously been
convicted by a Texas state court for burglary of a habitation, 1 and that offense
was the predicate for the federal district court’s application of a 16-level
sentencing enhancement under § 2L1.2(b)(1)(A)(ii) of the federal Sentencing




      1   TEX. PENAL CODE ANN. § 30.02(a) and (d) (West 2008).
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                                       No. 15-41476

Guidelines in effect in 2014, 2 without objection from Fuentes-Canales. The
federal    district     court   sentenced     Fuentes-Canales         to   50   months      of
imprisonment and three years of supervised release. On appeal, Fuentes-
Canales contends that his Texas conviction was not for generic burglary 3 and
that the district court therefore plainly erred in applying a 16-level
enhancement. This court, sitting en banc, issued United States v. Herrold 4
while Fuentes-Canales’s appeal was pending. That decision abrogated prior
decisions of this court that had held that a conviction under Texas Penal Code
§ 30.03(a)(1) is generic burglary.
       It is now plain in light of Herrold that the Fuentes-Canales’s conviction
for burglary does not qualify for purposes of § 2L1.2(b)(1)(A)(ii)’s 16-level
enhancement.          However, we affirm the district court’s judgment because
Fuentes-Canales failed to satisfy the fourth prong of plain-error review. 5
                                              I
       Fuentes-Canales is a citizen of El Salvador and first illegally entered the
United States in 1989, when he was 16 years old. He remained in this country
for 26 years, and while here, married, became a father, and obtained a divorce.
His conviction under Texas Penal Code § 30.02(a) and (d) arose from his
unlawful entry into the home of his former wife. After Fuentes-Canales had


       2   U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (U.S. SENTENCING
COMM’N 2014).
        3 See Taylor v. United States, 

, 598 (1990) (“We believe that Congress

meant by ‘burglary’ [in the Armed Career Criminal Act] the generic sense in which the term
is now used in the criminal codes of most States.”); 

exact formulations
vary, the generic, contemporary meaning of burglary contains at least the following elements:
an unlawful or unprivileged entry into, or remaining in, a building or other structure, with
intent to commit a crime.”).
        4 

(5th Cir. 2018) (en banc).
        5 See generally Rosales-Mireles v. United States, 

(2018) (discussing and

applying the fourth prong of plain-error review); Puckett v. United States, 

, 142-
43 (2009) (applying the plain-error standard of review and declining, at the fourth prong, to
correct the error).


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                                  No. 15-41476

served his five-year term of imprisonment for that offense, he was deported.
Approximately two months later, he was found in the United States and
pleaded guilty to re-entering illegally.
      The Presentence Investigative Report (PSR) concluded that his prior
Texas burglary conviction was for “burglary of a dwelling” within the meaning
of comment 1(B)(iii) to § 2L1.2 of the United States Sentencing Guidelines, and
the PSR recommended the application of a 16-level “crime of violence” increase
to Fuentes-Canales’s base offense level of 8, pursuant to § 2L1.2(b)(1)(A)(ii). In
addition, Fuentes-Canales has a prior conviction for driving while intoxicated.
After applying a three-level reduction for acceptance of responsibility, 6 the
total offense level was 21. His criminal history category was III, which resulted
in an advisory guidelines range of 46 to 57 months of imprisonment.
      Fuentes-Canales did not object to the 16-level enhancement, and the
district court accepted the PSR’s recommendations. The district court imposed
a sentence of 50 months of imprisonment and three years of supervised release.
Fuentes-Canales now contends that the district court plainly erred in applying
a 16-level enhancement and seeks re-sentencing.
                                           II
      Fuentes-Canales’s appeal has been pending in our court for a lengthy
period of time. The initial round of briefing was completed in May 2016, but
another case, United States v. Uribe, that presented similar issues, was also
pending. Because Uribe potentially resolved Fuentes-Canales’s case, our court
administratively held Fuentes-Canales’s appeal.         On October 3, 2016, a
decision in Uribe issued. 7 It examined whether Texas Penal Code § 30.02(a)
was divisible in light of the Supreme Court’s decision in Mathis v. United


      6See U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) and (b) (U.S. SENTENCING
COMM’N 2014).
     7 

(5th Cir. 2016).




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                                       No. 15-41476

States, 8 and concluded that the Texas statute was “elements-based” and
therefore that it was “divisible and the modified categorical approach applies
to determine which of the provisions of § 30.02(a) was the basis of [a
defendant’s] conviction.” 9 The Uribe opinion also concluded that the district
court did not err in applying a 16-level enhancement under § 2L1.2(b)(1)(A)(ii)
of the Guidelines. 10 The mandate in Uribe issued February 7, 2017.
       On April 11, 2017, a panel of this court issued an unpublished opinion in
United States v. Herrold, which, dutifully applying Uribe, held that § 30.02(a)
was indivisible, and that a conviction under that statute was generic
“burglary.” 11    Rehearing en banc was granted in Herrold, and Fuentes-
Canales’s appeal was once again administratively held by our court, this time
pending the court’s en banc decision in Herrold.
       The en banc court in Herrold considered how Texas state courts have
construed and applied Texas Penal Code § 30.02(a)(1) and (a)(3), and this court
concluded that § 30.02(a)(1) and (a)(3) are indivisible within the meaning of
Mathis because they “are not distinct offenses, but are rather separate means
of committing one burglary offense.” 12 The en banc court further held that
§ 30.02(a)(3) “is broader than generic burglary.” 13 Accordingly, § 30.02(a) was
overinclusive because it included a means of committing an offense that did




       8 

(2016).
       9 

.
       10 

       11 685 F. App’x 302, 303 (5th Cir. 2017) (per curiam) (unpublished).
       12 United States v. Herrold, 

, 529 (5th Cir. 2018) (en banc).
       13 

(holding that generic burglary requires “intent to commit a

crime contemporaneously accompany[ing] a defendant’s unauthorized entry” and that Texas
Penal Code § 30.02(a)(3) contains no such requirement).


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                                       No. 15-41476

not have the requisite elements of generic burglary. 14 The Uribe decision was
expressly overruled to the extent that it is inconsistent with Herrold. 15
       Fuentes-Canales’s appeal was assigned to this panel, and we expedited
our consideration of the issues he raises.
                                              III
       Because Fuentes-Canales failed to object to the 16-level enhancement in
the district court, our review is for plain error under Federal Rule of Criminal
Procedure 52(b). 16 “[T]he authority created by Rule 52 is circumscribed.” 17 The
Supreme Court has “established three conditions that must be met before a
court may consider exercising its discretion to correct the error.” 18 “There must
be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’” 19 If these
conditions are met, the Supreme Court has said that “Rule 52(b) leaves the
decision to correct the forfeited error within the sound discretion of the court
of appeals, and the court should not exercise that discretion unless the error
‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” 20 This latter limitation is often described as the fourth prong of




       14  See, e.g., Mathis v. United States, 

, 2248 (2016); Shepard v. United
States, 

, 30 (2005) (O’CONNOR, J., dissenting) (“Every statute punishes a certain
set of criminalized actions; the problem with some burglary statutes, for purposes of the
ACCA, is that they are overinclusive.”).
        15 

.
        16 FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be

considered even though it was not brought to the court's attention.”).
        17 United States v. Olano, 

, 732 (1993).
        18 Rosales-Mireles v. United States, 

, 1904 (2018) (citing Olano, 

)
        19 

(alteration in original).
        20 

original) (quoting United States v. Young, 

, 15 (1985)

(quoting United States v. Atkinson, 

, 160 (1936))).


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                                       No. 15-41476

plain error review. 21       “Meeting all four prongs [of plain-error review] is
difficult, ‘as it should be.’” 22
                                              A
       The first and second prongs of plain-error review are satisfied because
the district court clearly erred in applying the 16-level enhancement. When
Fuentes-Canales was sentenced, the Sentencing Guidelines provided for a 16-
level increase in a defendant’s base offense level if he or she previously was
removed after being convicted of a “crime of violence.” 23 A “crime of violence,”
as defined in the commentary to the 2014 Guidelines, included the enumerated
offense of “burglary of a dwelling.” 24 To determine whether the Texas offense
of burglary of a habitation is equivalent to “burglary of a dwelling,” courts
apply the categorical approach to compare the offense as defined by the Texas
statute with the “generic” definition of burglary of a dwelling. 25 If the statute
does not require that at least each of the elements of generic burglary must be
found by the fact-finder or admitted by the defendant, then the state offense is
not generic and therefore is not an enumerated crime of violence. 26
       We have applied the generic definition of burglary in the Armed Career
Criminal Act (ACCA) 27 to define the enumerated offense of “burglary” in the
Sentencing Guidelines. 28 The principles governing the categorical approach,

       21  See, e.g., Puckett v. United States, 

, 142 (2009) (“Puckett contends that
the fourth prong of plain-error review likewise has no application because every breach of a
plea agreement will constitute a miscarriage of justice. That is not so.”).
        22 

(quoting United States v. Dominguez Benitez, 

, 83 n. 9 (2004)).
        23 U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (U.S. SENTENCING

COMM’N 2014).
        24 

        25 United States v. Morales-Mota, 

, 412 (5th Cir. 2012) (per curiam).
        26 See United States v. Hinkle, 

, 574-75 (5th Cir. 2016).
        27 18 U.S.C. § 924(c).
        28 See, e.g., United States v. Ortega-Gonzaga, 

, 394-95 (5th Cir. 2007); see

also United States v. Bernel-Aveja, 

, 212-14 (5th Cir. 2016) (relying upon an
ACCA case in its analysis of whether the defendant’s “burglary of a habitation” conviction
qualified for an enhancement under former § 2L1.2).


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                                     No. 15-41476

and the methods announced in Mathis for determining whether a statute is
divisible, also apply when ascertaining whether a prior conviction was for
“burglary” within the meaning of the Sentencing Guidelines. 29 As used in the
Guidelines’ definition of “crime of violence,” “burglary of a dwelling” is a subset
of “generic” burglary. 30
      As discussed above, this court held in United States v. Herrold, that
Texas Penal Code § 30.02(a)(3) sets forth a means of committing an offense
that is not generic burglary under the ACCA, and §§ 30.02(a)(1) and (a)(3) are
not divisible. 31 Accordingly, a conviction under § 30.02(a)(1) or (a)(3) is not for
generic burglary within the meaning of the Guidelines. 32 Fuentes-Canales was
convicted under subsections (a) and (d) of § 30.02. Subsection (d) is essentially,
though not precisely, a combination of subsections (a)(1) and (a)(3) from an
elements standpoint.        Subsection (d) provides that unlawfully entering a
habitation is a first-degree felony if “any party to the offense entered the
habitation with intent to commit a felony other than felony theft or committed
or attempted to commit a felony other than felony theft.” 33 Like subsection
30.02(a)(3), the defendant need not have the intent to commit a felony at the
time of unlawful entry, and therefore a conviction under § 30.03(d) is not for
generic burglary. 34
      The district court’s error in applying a 16-level enhancement for the
conviction under § 30.02(a) and (d) is clear because “as long as the error was
plain as of . . . the time of appellate review . . . the error is ‘plain’ within the
meaning of the Rule. And the Court of Appeals ‘may . . . conside[r]’ the error


      29 See 

.
      30 United States v. Murillo-Lopez, 

, 344-45 (5th Cir. 2006).
      31 

, 536-37 (5th Cir. 2018) (en banc).
      32 

PENAL CODE ANN. § 30.02(d)(2) (West 2008).
      34 See United States v. Herrold, 

, 526-29, 536-37 (5th Cir. 2018).




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                                        No. 15-41476

even though it was ‘not brought to the [trial] court's attention.’” 35 This court’s
decision in Herrold is now the law of this Circuit.
                                               B
       To satisfy the third prong of plain-error review, “the defendant ordinarily
must ‘show a reasonable probability that, but for the error,’ the outcome of the
proceeding would have been different.” 36 The Supreme Court has explained
that “[w]hen a defendant is sentenced under an incorrect Guidelines range—
whether or not the defendant’s ultimate sentence falls within the correct
range—the error itself can, and most often will, be sufficient to show a
reasonable probability of a different outcome absent the error.” 37 The Court
has also explained that, “[w]here . . . the record is silent as to what the district
court might have done had it considered the correct Guidelines range, the
court’s reliance on an incorrect range in most instances will suffice to show an
effect on the defendant’s substantial rights.” 38 In other contexts, the Supreme
Court has said “[a] reasonable probability does not mean that the defendant
‘would more likely than not have received a different verdict with the evidence,’
only that the likelihood of a different result is great enough to ‘undermine[ ]
confidence in the outcome of the trial.’” 39


       35  Henderson v. United States, 

, 268 (2013) (quoting FED. R. CRIM.
P. 54(b)); United States v. Escalante-Reyes, 

, 423 (5th Cir. 2012) (en banc).
       36 Rosales-Mireles v. United States, 

, 1904-05 (2018) (quoting Molina-

Martinez v. United States, 

, 1343 (2016)).
       37 

.
       38 

       39 Smith v. Cain, 

, 75 (2012) (considering a claim that the state withheld

exculpatory evidence) (quoting Kyles v. Whitley, 

, 434 (1995)); see also United
States v. Bagley, 

, 682 (1985) (considering claim that evidence that could have
been used for impeachment was withheld); Strickland v. Washington, 

, 694
(1984) (considering ineffective assistance of counsel claim); cf. Lee v. United States, 

, 1967-68 (2017) (“In the unusual circumstances of this case, we conclude that Lee has
adequately demonstrated a reasonable probability that he would have rejected the plea had
he known that it would lead to mandatory deportation. There is no question that ‘deportation
was the determinative issue in Lee's decision whether to accept the plea deal.’”).


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                                  No. 15-41476

      The federal district court stated on the record at Fuentes-Canales’s
sentencing hearing that, after considering a number of factors, 50 months of
imprisonment was appropriate, which was within the 46-to-57-month range
the court had determined was the correct Guidelines range. The district court
rejected the Government’s request for a sentence at the high end of the range,
as well as Fuentes-Canales’s request for a 36-month sentence. The district
court stated that it had considered a sentence less than 50 months since this
was the defendant’s “first conviction for illegal re-entry,” but that “I think the
factors that weigh against that [are] the recency of the return following a
deportation, the recency of the criminal history and the seriousness of the
criminal history.” The court also explained that “I think a high range would
have been and could have been justified,” and “the only reason I’m not doing
high end is because it’s your first conviction for” illegal re-entry. Fuentes-
Canales argues on appeal that absent the 16-level enhancement, he would be
subject, at most, to an 8-level enhancement, resulting in a Guidelines range of
18 to 24 months of imprisonment. The record is silent as to the sentence the
district court would have imposed had the court known that the advisory
sentencing range was 18 to 24 months of imprisonment, since Fuentes-
Canales’s Texas burglary conviction did not qualify as “generic burglary” under
the categorical approach that courts must apply.
      This panel’s now-withdrawn majority opinion concluded that the third
prong of plain-error review had been satisfied and focused primarily on the
fourth prong of plain-error review. We have more thoroughly examined the
state-court record of Fuentes-Canales’s prior conviction for burglary, and now
conclude that it is unnecessary to resolve whether the third prong has been
satisfied. We will assume, without deciding, that Fuentes-Canales has shown
that there is a reasonable probability that, had the district court known that



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                                       No. 15-41476

the correctly calculated advisory sentencing range was 18 to 24 months of
imprisonment, the court would not have imposed 50 months of imprisonment.
                                             C
         With regard to the fourth prong of plain-error review, the Supreme Court
reasoned in Rosales-Mireles v. United States that proof that a district court
relied        on   a   miscalculated   guidelines    range     “will     in   the   ordinary
case . . . seriously affect the fairness, integrity, or public reputation of judicial
proceedings, and thus will warrant relief” under the fourth prong of plain-error
review. 40 However, the Court recognized that “[t]here may be instances where
countervailing factors satisfy the court of appeals that the fairness, integrity,
and public reputation of the proceedings will be preserved absent correction.” 41
This is such a case.
                                              1
         Ideally, each defendant who committed a “crime of violence” within the
meaning of a Guidelines section would receive the same level of enhancement.
However, when a state statute, such as Texas Penal Code § 30.02(a) and (d),
defines a non-generic offense, the offense level under the sentencing Guidelines
will not be enhanced even if the defendant actually committed the generic
offense of burglary or committed another generic “crime of violence” in the
course of committing non-generic burglary. 42 While courts cannot consider the
factual means by which a defendant committed a prior offense for purposes of




         40Rosales-Mireles v. United States, 

, 1903 (2018).
         41

        42 Mathis v. United States, 

, 2248 (2016) (“A crime counts as ‘burglary’

under the [ACCA] if its elements are the same as, or narrower than, those of the generic
offense. But if the crime of conviction covers any more conduct than the generic offense, then
it is not an ACCA ‘burglary’—even if the defendant's actual conduct (i.e., the facts of the
crime) fits within the generic offense's boundaries.”) (emphasis in original).


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                                        No. 15-41476

arriving upon the correct Guidelines sentencing range, 43 the defendant’s actual
commission of a “crime of violence” or other evidence regarding the
defendant—if sufficiently supported by the record—may be considered in
imposing a sentence well outside the advisory Guidelines range. 44 Such a
sentence does not adversely affect the fairness, integrity, or public reputation
of judicial proceedings. By analogy, the fairness, integrity, or public reputation
of judicial proceedings is not adversely affected if an appellate court declines
to vacate a sentence at the fourth prong of plain-error review on the basis that
the defendant, who, as a factual matter (beyond a reasonable doubt in this
case), committed a generic crime of violence has been treated the same as
similarly situated defendants convicted of a generic crime of violence.
       The Supreme Court reaffirmed in Rosales-Mireles that “[o]f course, any
exercise of discretion at the fourth prong of Olano inherently requires ‘a case-
specific and fact-intensive’ inquiry,” 45 and in Puckett v. United States, the
Court “emphasized that a ‘per se approach to plain-error review is flawed.’” 46
In Rosales-Mireles the inquiry was straightforward. The presentencing report
erroneously      double-counted        one     of   the    defendant’s       prior    state-law




       43  See, e.g., United States v. Hinkle, 

, 572 (5th Cir. 2016) (“In determining
whether a prior conviction is included within an offense defined or enumerated in the
Guidelines, we have generally looked only to the elements of the prior offense, not to the
actual conduct of the defendant in committing the offense.”).
        44 See, e.g., 18 U.S.C. § 3553; Gall v. United States, 

, 58 (2007) (concluding,

in upholding a sentence of probation when the Guidelines sentencing range was 30 to 37
months of imprisonment, that “[g]iven the dramatic contrast between Gall's behavior before
he joined the conspiracy and his conduct after withdrawing, it was not unreasonable for the
District Judge to view Gall's immaturity at the time of the offense as a mitigating factor, and
his later behavior as a sign that he had matured and would not engage in such impetuous
and ill-considered conduct in the future. Indeed, his consideration of that factor finds support
in our cases.”)
        45 Rosales-Mireles v. United States, 

, 1909 (2018) (citing United States

v. Olano, 

(1993)) (quoting Puckett v. United States, 

, 142 (2009)).
        

(quoting United States v. Young, 

, 17 n.14 (2009)).




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                                      No. 15-41476

misdemeanor assault convictions, resulting in an incorrect guidelines range. 47
The Supreme Court held that resentencing was appropriate because the first
three prongs of plain error were met, and no “countervailing factors” suggested
that “the fairness, integrity, and public reputation of the proceedings w[ould]
be preserved absent correction.” 48
      In Puckett, by contrast, the defendant contended that the Government
had violated a plea agreement and argued that the fourth prong was always
satisfied in such a case. 49 The Court disagreed, reasoning, “[i]t is true enough
that when the Government reneges on a plea deal, the integrity of the system
may be called into question, but there may well be countervailing factors in
particular cases.” 50    The Court explained that “Puckett is again a good
example: Given that he obviously did not cease his life of crime, receipt of a
sentencing reduction for acceptance of responsibility would have been so
ludicrous as itself to compromise the public reputation of judicial
proceedings.” 51 The present case is analogous.
                                             2
      A careful review of Fuentes-Canales’s conviction for burglary reveals
that the state-court jury necessarily found (based on the state court’s
instructions and charge) that Fuentes-Canales committed generic burglary or
generic aggravated assault or both. Each of those offenses is a “crime of
violence” as defined in § 2L1.2(b)(A)(ii) of the 2014 Guidelines.               Though
Fuentes-Canales’s conviction could not support the 16-level enhancement, his
criminal history is substantially understated in light of the facts underlying
his particular criminal conduct. In sentencing a defendant, a federal district

      47 

.
      48 

      49 Puckett v. United States, 

, 142 (2009).
      50 

      51 

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                                       No. 15-41476

court could consider the facts underlying a prior conviction if adequately
supported by evidence. 52 In the present case, there is not only evidence, but a
finding by a jury beyond a reasonable doubt, that Fuentes-Canales committed
a crime of violence.
       Though Fuentes-Canales was convicted under a non-generic burglary
statute, the instructions and charge given to the Texas jury did not permit it
to find Fuentes-Canales guilty unless the jury found all the elements of either
(1) generic burglary or (2) generic aggravated assault, which is also a “crime of
violence” defined by the Guidelines as an offense under state law “that has as
an element the use, attempted use, or threatened use of physical force against
the person of another.” 53 This can be ascertained from the indictment and the
written jury instructions and charge.
       The Texas jury said in written findings: “We, the jury, unanimously find
the defendant, [Fuentes-Canales], GUILTY of burglary of a habitation with
intent to commit a felony, as charged in the indictment.” The indictment
alleged the elements of “generic burglary.” 54 Similarly, the state trial court’s
written instructions to the jury said, “[o]ur law provides that [sic] person
commits the offense of burglary of a habitation if, without the effective consent
of the owner, the person enters a habitation with intent to commit theft or any
felony.”




       52   See, e.g., United States v. Herrera-Garduno, 

, 530-31 (5th Cir. 2008).
       53   U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii); cmt. n.1(B)(iii); cmt. n.5
(U.S. SENTENCING COMM’N 2014).
         54 See, e.g., Mathis v. United States, 

, 2248 (2016) (reiterating that

“burglary [is] a crime ‘contain[ing] the following elements: an unlawful or unprivileged entry
into . . . a building or other structure, with intent to commit a crime’”) (quoting Taylor v.
United States, 

, 598) (1990)); 

(“[T]he generic,
contemporary meaning of burglary contains at least the following elements: an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit
a crime.”).


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                                         No. 15-41476

      Although the indictment and jury instructions also permitted the jury to
convict Fuentes-Canales of non-generic burglary, 55 the jury was instructed
that it could not convict him of this means of committing burglary unless it
found that he committed or attempted to commit aggravated assault after he
unlawfully entered. The indictment did not define “aggravated assault,” but
the definition in the state trial court’s charge to the jury set forth the elements
of generic aggravated assault. The instructions informed the jury that “[o]ur
law provides that a person commits the offense of aggravated assault if the
person intentionally or knowingly threatens another with imminent bodily
injury and the person uses or exhibits a deadly weapon during the commission
of the offense.” The jury was also instructed that if it unanimously found that
Fuentes-Canales “did then and there unlawfully, intentionally or knowingly
enter a habitation without the effective consent of Sandra Fuentes, the owner
thereof, and did then and there commit or attempt to commit a felony other

      55   The indictment alleged, in its entirety:

      FUENTES, CARLOS ALBERTO, Defendant,

      On or about the 18th day of August A.D., 2008 in the County of Dallas and said
      State, did

      unlawfully, intentionally and knowingly enter a habitation without the
      effective consent of SANDRA FUENTES, the owner thereof, with the intent to
      commit a felony other than theft, namely, AGGRAVATED ASSAULT,

      And further, said Defendant did unlawfully, intentionally and knowingly enter
      a habitation without the effective consent of SANDRA FUENTES, the owner
      thereof, and did then and there commit and attempt to commit a felony other
      than theft, namely, AGGRAVATED ASSAULT,

      And it is further presented in and to said Court that a deadly weapon, to-wit:
      A KNIFE, was used or exhibited during the commission of the aforesaid offense
      or during immediate flight following the commission of the aforesaid offense,
      and that the defendant used or exhibited said deadly weapon or was a party to
      the aforesaid offense and knew that a deadly weapon would be used or
      exhibited.



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                                        No. 15-41476

than theft, namely, aggravated assault, then you will find the defendant guilty
as charged in the indictment.” These instructions were based on Texas Penal
Code §§ 22.01(a)(2) 56 and 22.02(a)(2). 57          This court has held that such an
offense is generic “aggravated assault” and therefore a “crime of violence”
within the meaning of the Guidelines. 58
       Accordingly, there were only three possibilities as to what the jury found
in saying “[w]e, the jury, unanimously find the defendant [Fuentes-Canales],
GUILTY of burglary of a habitation with intent to commit a felony, as charged
in the indictment.” One is that the jury found, as permitted by the court’s
instructions, that at the time Fuentes-Canales unlawfully entered the
premises, he intended to commit a felony. That is generic burglary.
       A second possibility is that the jury convicted Fuentes-Canales of non-
generic burglary under Texas Penal Code § 30.02(d) by finding that he
unlawfully entered a habitation and committed or attempted to commit generic
aggravated assault. If the jury found Fuentes-Canales guilty of non-generic
burglary, and therefore, necessarily found that he intentionally or knowingly



       56  See Landrian v. State, 

, 536 (Tex. Crim. App. 2008) (holding that
TEX. PENAL CODE § 22.01(a) “sets out three separate and distinct assaultive crimes,” noting
that (a)(1) “‘bodily injury’ assault is a result-oriented assaultive offense and normally a Class
A misdemeanor” while (a)(2) “is conduct-oriented, focusing upon the act of making a threat
regardless of any result that threat might cause,” and “is normally a Class C misdemeanor.”)
        57 See TEX. PENAL CODE § 22.01(a)(2) (2008) [8-18-2008, date of offense] (“A person

commits an offense if the person . . . intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse”); § 22.02(a)(2) (defining “aggravated
assault”) (“A person commits an offense if the person commits assault as defined in § 22.01
and the person . . . uses or exhibits a deadly weapon during the commission of the assault.”).
        58 See United States v. Sanchez-Sanchez, 

, 304-05 (5th Cir. 2015); see also

(“In the Fifth Circuit, ‘[t]he generic, contemporary meaning of aggravated assault
is an assault carried out under certain aggravating circumstances.’ Among those
circumstances we have listed ‘use of a deadly weapon.’”) (alteration in original) (quoting
United States v. Esparza-Perez, 

, 233 (5th Cir. 2012) and United States v. Fierro–
Reyna, 

, 329 (5th Cir.2006)); 

(“Assault . . . requires proof that the defendant either caused, attempted to cause, or
threatened to cause bodily injury or offensive contact to another person.”).


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                                        No. 15-41476

threatened another person with imminent bodily injury and that he used or
exhibited a deadly weapon, that is a finding that Fuentes-Canales also
committed an offense that came within the “force clause” of the “crime of
violence” definition in the Guidelines.              Under the Guidelines, “crime of
violence” includes “any . . . offense under federal, state, or local law that has as
an element the use, attempted use, or threatened use of physical force against
the person of another.” 59 This court has held that “[t]here can be no question
that a crime under Texas Penal Code § 29.03(a)(2), that is, threatening
someone with imminent bodily injury or death . . . while using or exhibiting a
deadly weapon in the course of committing theft with intent to obtain or
maintain control of the property, has as an element the threatened use of
physical force against the person of another.” 60 The same reasoning applies to
aggravated assault, as defined in the state court’s charge to the jury and the
corresponding provisions of Texas Penal Code §§ 22.01(a)(2) and 22.02(a)(2).
       The third possibility is that the jury found that Fuentes-Canales
committed both generic burglary and generic aggravated assault. In that
event, the jury also found that he committed an offense coming within the
“force” clause of the Guidelines’ definition of a “crime of violence.”
       The charge required the jury to find either the elements of generic
burglary or the elements of generic aggravated assault, not just the means of
committing burglary. 61 Fuentes-Canales had every incentive in the state trial


       59  U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii); cmt. n.1(B)(iii) (U.S.
SENTENCING COMM’N 2014).
        60 United States v. Lerma, 

, 636 (5th Cir. 2017) (applying the “force” clause

of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)).
        61 Cf. Mathis v. United States, 

, 2253 (2016) (“[A]n elements-focus avoids

unfairness to defendants. Statements of ‘non-elemental fact’ in the records of prior
convictions are prone to error precisely because their proof is unnecessary. At trial, and still
more at plea hearings, a defendant may have no incentive to contest what does not matter
under the law; to the contrary, he ‘may have good reason not to’—or even be precluded from
doing so by the court. When that is true, a prosecutor's or judge's mistake as to means,


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                                      No. 15-41476

court to contest vigorously that he intended to commit a felony when he
unlawfully entered his former wife’s home, and to contest vigorously that he
committed or attempted to commit generic aggravated assault after he
unlawfully entered. Unless there was a reasonable doubt on both scores, the
jury could convict him. 62
       In Rosales-Mireles, the Supreme Court provided fresh guidance
regarding the fourth prong of plain error review when a Guidelines sentencing
range has been improperly calculated. 63 The Court reasoned that “an error
resulting in a higher range than the Guidelines provide usually establishes a
reasonable probability that a defendant will serve a prison sentence that is
more than ‘necessary’ to fulfill the purposes of incarceration.” 64 In the present
case, an error occurred that resulted in a range that was higher than the
Guidelines provide, but the facts of this case do not establish that Fuentes-
Canales will serve a prison sentence that is more than “necessary” to fulfill the
purposes of incarceration. Though the sentence is above the correct Guidelines
range,   it   nevertheless     “achiev[es]       uniformity   and    proportionality     in
sentencing.” 65 Fuentes actually committed a crime just as serious as, if not
more serious than, generic burglary.
                                             3
       Fuentes-Canales’s receipt of a sentence that would be imposed in the
mine run of cases in which the defendant was previously convicted of generic
burglary also does not call the integrity of the judicial system into question,


reflected in the record, is likely to go uncorrected. Such inaccuracies should not come back
to haunt the defendant many years down the road by triggering a lengthy mandatory
sentence.”) (citations omitted) (quoting Descamps v. United States, 

, 2283-89
(2013)).
        62 Cf. 

v. United States, 

, 1907-11 (2018).
        64 

        65 

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                                           No. 15-41476

given the specific facts of Fuentes-Canales’s prior offense. 66 In addition to the
Texas jury’s finding that Fuentes-Canales committed either generic burglary
or generic aggravated assault, or both, there is compelling evidence,
unchallenged and unrebutted by Fuentes-Canales that, as a factual matter, he
did commit the generic crime of burglary and used a deadly weapon in the
process. This evidence is found in a description of the facts underlying the
Texas burglary offense in the PSR, which relied on the state-court indictment
and an “Affidavit for Arrest Warrant or Capias,” (Affidavit). The indictment
and Affidavit are attached to the PSR. Fuentes-Canales did not object to the
PSR or contest the accuracy of its factual description of his conduct before and
during the offense for which he was convicted under Texas Penal Code
§ 30.02(a) and (d). “If information is presented to the sentencing judge with
which the defendant would take issue, the defendant bears the burden of
demonstrating that the information cannot be relied upon because it is
materially untrue, inaccurate, or reliable.” 67
        The PSR and the state-court Affidavit reflect that Fuentes-Canales
called his former wife, threatened to kill her during that call, and an hour later,
at approximately 10:25 p.m., he entered her home without her permission and
with no right to be on the premises. When she heard noises at the back, sliding-
glass door, she thought it was her son attempting to enter her home. She exited
her bedroom and encountered Fuentes-Canales in the hallway holding three of
her kitchen knives.             He pressed the knives against her abdomen and


        66 See Puckett v. United States, 

, 135 (2009) (noting appellate courts’ discretion to
remedy an error under prong four “ought to be exercised only if the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings’”) (alteration in original) (emphasis
added) (quoting United States v. Olano, 

, 736 (1993)).
        67United States v. Landerman, 

, 898 n.2 (5th Cir. 1999) (quoting United
States v. Angulo, 

, 205 (5th Cir. 1991)); see generally United States v. Nava, 

, 231-32 (5th Cir. 2010); United States v. Trujillo, 

, 357 (5th Cir. 2007);
United States v. Rose, 

, 633 (5th Cir. 2006).


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                                     No. 15-41476

threatened to kill her. When he realized their seven-year-old daughter Keire
was witnessing the assault of her mother, he grabbed Keire and fled from the
residence with her in his arms. His former wife shouted that she was calling
the police.     Fuentes-Canales re-entered the home, grabbed the phone,
“smashed it on the floor,” and again fled, leaving Keire in the front yard. His
former wife called 911 on another phone. The responding officer, upon entering
the home, observed three knives on an end table in the living room and a
“smashed” phone on the hallway floor of the residence.
      During the sentencing phase of the state trial, the jury found in another
special issue that Fuentes-Canales used or exhibited a deadly weapon during
the commission of the offense for which he had been convicted. 68 In his briefing
in our court, Fuentes-Canales states that this finding “relates only to whether
the state judge could order community supervision,” and “does not relate to
any element of the offense itself.” 69 However, the jury’s finding increased the
statutory minimum sentencing range, and Texas law required that a
unanimous jury make the requisite finding.




      68  The special issue read, “We, the jury, unanimously find the defendant did use or
exhibit a deadly weapon during the commission of the offense.” (Emphasis in original).
       69 At the time Fuentes-Canales committed the Texas offense, TEX. CODE CRIM. PROC.

ANN. art. 42.12 § 3g(a)(2) (West Supp. 2013), which was repealed effective January 1, 2017,
provided that the discretion given to a judge to place a defendant on community supervision
did not apply

      to a defendant when it is shown that a deadly weapon as defined in Section
      1.07, Penal Code, was used or exhibited during the commission of a felony
      offense or during immediate flight therefrom, and that the defendant used or
      exhibited the deadly weapon or was a party to the offense and knew that a
      deadly weapon would be used or exhibited. On an affirmative finding under
      this subdivision, the trial court shall enter the finding in the judgment of the
      court. On an affirmative finding that the deadly weapon was a firearm, the
      court shall enter that finding in its judgment.



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                                 No. 15-41476

      In light of the record in this case, we cannot conclude that the public
reputation of judicial proceedings is compromised because Fuentes-Canales’s
sentencing range was derived from an erroneously imposed 16-level
enhancement, when other defendants, convicted of far less culpable conduct,
properly receive such an enhancement under the Guidelines. Nor can we say
that the error in applying a 16-level enhancement seriously affects the fairness
or integrity of judicial proceedings in light of the facts of this case.      The
50-month sentence that he received is comparable to sentences that would be
imposed on those who committed a comparable prior offense.
      We therefore conclude that we should not exercise our discretion to
correct the district court’s error in applying a 16-level enhancement based on
the Texas conviction under Texas Penal Code § 30.02(a) and (d).
                                 *     *     *
      The judgment of the district court is AFFIRMED.




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