ANDERSON, Circuit Judge:
Lazaro Ramirez-Flores appeals his forty-six months sentence for illegal re-entry after deportation. Ramirez-Flores contends
Ramirez-Flores is a native and citizen of Mexico who first entered the United States illegally in 1998. On June 27, 2012, he pled guilty to illegal re-entry in violation of 8 U.S.C. §§ 1325(a)(1), 1326(a), and 1329.
Prior to sentencing, the Probation Office prepared a Presentence Investigation Report ("PSI") and calculated the applicable Guidelines range to be forty-six to fifty-seven months. The Probation Office based this determination on its finding that Ramirez-Flores' 2007 conviction for the burglary of a dwelling in violation of S.C.Code § 16-11-312(A) qualified as a "crime of violence," leading to a sixteen-level enhancement. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Importantly for this appeal, paragraph 28 of the PSI states that Ramirez-Flores "forcibly entered the victim's residence with a co-defendant and removed property from the residence."
Ramirez-Flores did not file written objections to the PSI, but he objected at the sentencing hearing to paragraph 17, which imposed the sixteen-level enhancement, and to the "application of the law [and] facts" in paragraph 28. Specifically, he argued that the South Carolina burglary conviction did not constitute a "crime of violence" because the corresponding judgment described the offense as "Burglary (Non-Violent)." He also speculated that, while the indictment charged him with entering the "dwelling" of the victim, he may have pled guilty to a lesser offense. The district court overruled the objection and applied the sixteen-level enhancement. Ramirez-Flores now challenges this determination.
Although the sentencing transcript suggests that neither party at sentencing was aware of this fact, both parties agree on appeal that S.C.Code § 16-11-312(A) does not encompass only the federal "generic" definition of burglary. Rather, it encompasses not only unlawful entry into a residence, but also unlawful entry into non-generic structures, such as outhouses, sheds, or other buildings that are within two hundred yards of and appurtenant to a residence.
After the parties had completed briefing but before oral argument, the Supreme Court decided Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), clarifying the proper analytical approach for determining whether a defendant's sentence should be enhanced.
The Guidelines impose a sixteen-level enhancement in cases where an alien "was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The term "crime of violence" means "any of the following offenses under federal, state, or local law ... [including the] burglary of a dwelling." Id. § 2L1.2 cmt. n.1(B)(iii).
Not all burglaries qualify as a "crime of violence." In resolving whether a prior conviction triggers a Guidelines enhancement, we generally apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990). Under Taylor, a conviction for burglary is a predicate "crime of violence" only if the underlying state offense meets the generic definition of burglary — that is, has the "basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 495 U.S. at 599, 110 S.Ct. at 2158; accord United States v. Rainer, 616 F.3d 1212, 1214-15 (11th Cir. 2010). If the statute of conviction "sweeps more broadly than the generic [burglary], a conviction under that law cannot [categorically] count as a ["crime of violence"], even if the defendant actually committed [burglary] in its generic form." Descamps, ___ U.S. at ___, 133 S.Ct. at 2283.
But in cases involving a "divisible" statute — i.e., one that sets out one or more elements of the offense in the alternative, in effect creating several different crimes — a modified categorical approach applies. See id. at ___, 133 S.Ct. at 2283-85; Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1280 (11th Cir.2013). If at least one of the alternative elements matches the generic definition, we may "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative element formed the basis of the defendant's prior conviction." Descamps, ___ U.S. at ___, 133 S.Ct. at 2281. We have also permitted the use of undisputed facts contained in a PSI. See United States v. Bennett, 472 F.3d 825, 834 (11th Cir.2006).
It is clear from Descamps and from our even more recent decision in Donawa that the modified categorical approach "serves a limited function" and should be used only in a "narrow range of cases." Id. at ___, 133 S.Ct. at 2283; accord Donawa, 735 F.3d at 1280-81. If the statute of conviction defines burglary "not alternatively, but only more broadly than the generic offense," the modified categorical approach "has no role to play." Descamps, ___ U.S. at ___, 133 S.Ct. at 2283, 2285.
We first consider Ramirez-Flores' most recent argument that S.C.Code § 16-11-312(A) is not a divisible statute within the meaning of Descamps. Because a conviction under S.C.Code § 16-11-312(A) does not necessarily involve conduct equating to generic burglary, his new argument goes, a conviction under that statute can never qualify as a predicate "crime of violence" for purposes of the Guidelines, even if he actually committed a generic burglary.
At the outset, the government contends that we should review for plain error because Ramirez-Flores did not raise this argument in the district court or in his briefs to this court. We agree. We have consistently stated that a defendant seeking to preserve an objection to his sentence for appeal must "raise that point in such clear and simple language that the trial court may not misunderstand it." United States v. Massey, 443 F.3d 814, 819 (11th Cir.2006). "The defendant ... fails to preserve a legal issue for appeal if the factual predicates of an objection are included in the sentencing record, but were presented to the district court under a different legal theory." Id. (emphasis added); see also United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir.2013) (per curiam) (reviewing for plain error a new legal argument supporting an objection that was raised in the district court); United States v. Doe, 661 F.3d 550, 567 (11th Cir.2011) (same); United States v. Castro, 455 F.3d 1249, 1252-53 (11th Cir. 2006) (per curiam) (same). At sentencing, Ramirez-Flores objected to the sixteen-level enhancement on the ground that his prior South Carolina conviction did not amount to a "crime of violence" because the corresponding judgment of conviction described the offense as "Burglary (Non-Violent)." He also speculated that he may not have pled to the same crime as described in the charging instrument. These objections are substantively different from the argument Ramirez-Flores now raises, namely that a conviction under S.C.Code § 16-11-312(A) can never qualify as a "crime of violence," even if he actually committed burglary in its generic sense.
S.C.Code § 16-11-312(A) provides that "[a] person is guilty of burglary in the second degree if the person enters a dwelling without consent and with the intent to commit a crime therein." "Dwelling" encompasses its definition as found in S.C.Code § 16-11-10, which in turn states:
Id. § 16-11-10.
Neither the parties nor this court have been able to identify a case interpreting whether S.C.Code § 16-11-312(A) is divisible for federal sentencing purposes. We cannot conclude that it is plain or obvious that the South Carolina statute is indivisible, as Ramirez-Flores contends. It could be argued that S.C.Code § 16-11-312(A) — i.e., criminalizing the entry of a dwelling without consent and with intent to commit a crime — might be indivisible, if considered in isolation. The argument would proceed as follows: if the term "dwelling" were undefined, then the statute would create only a single crime — i.e., entry into a dwelling — and thus might be indivisible.
We need not in this case definitively decide that the South Carolina statute at issue is divisible. We need decide only that it is not plain or obvious that the statute is indivisible. Thus, Ramirez-Flores' new argument based on Descamps cannot survive plain error review.
Having rejected Ramirez-Flores' new argument based on Descamps, we turn to the argument set forth in his briefs on appeal — i.e., his argument that his prior South Carolina conviction does not qualify as a "crime of violence" because the Shepard documents do not prove that he burglarized a generic dwelling.
The primary evidence before the district court indicating that Ramirez-Flores' prior conviction involved the burglary of a residence was the PSI. As noted above, we have held that a sentencing court applying the modified categorical approach may consider undisputed facts contained in the PSI. Bennett, 472 F.3d at 834. Paragraph 28 of the PSI states that Ramirez-Flores "forcibly entered the victim's residence with a co-defendant and removed property from the residence." Ramirez-Flores claims that he objected at the sentencing hearing to the facts set forth in that paragraph and, therefore, we may not rely on its description of his conduct. This argument is without merit. While it is true that Ramirez-Flores made a general objection to the factual and legal statements in paragraph 28,
We require objections to the PSI to be made with "specificity and clarity" in order to alert the government and the district court to the mistake of which the defendant complains. See United States v. Aleman, 832 F.2d 142, 145 (11th Cir.1987) (observing that vague objections would "oblige the district court to guess whether a challenge is being mounted as well as what [the] defendant wishes to contest"). This requirement is not gratuitous; rather, it ensures that the government has an opportunity to address or correct the alleged error. See United States v. Gallo-Chamorro, 48 F.3d 502, 507-08 (11th Cir. 1995) (declining to consider the defendant's argument because "additional facts would have been developed in the trial court had the [specific objection] been presented there" (internal quotation and citation omitted)). In this case, for example, the government could have obtained further documentation from the state court proceeding — e.g., the plea agreement or the transcript of the plea colloquy — had it known that it needed to clarify whether Ramirez-Flores burglarized a residence or a secondary structure. Accordingly, "in cases such as this ... judicial economy is served and prejudice is avoided by binding the parties to the facts presented and the theories argued below." Id. (internal quotation and citation omitted).
We therefore conclude that Ramirez-Flores failed to object to the PSI's statement that the conduct underlying his South Carolina burglary conviction involved entry into the victim's residence. Because the district court properly relied upon that fact as undisputed, Ramirez-Flores' argument that his prior conviction may not have involved generic burglary fails.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
MARTIN, Circuit Judge, concurring:
I concur in both the reasoning and the result of the majority opinion. I write separately, however, to highlight the role of this Circuit's waiver precedent in arriving at this result. As the majority opinion points out, the Supreme Court recently clarified how courts should apply the categorical
Because we apply the modified categorical approach, we reach the issue of whether Mr. Ramirez-Flores's objection to the facts set forth in paragraph 28 of the presentence investigation report (PSR) precluded the District Court from relying on it. This Circuit's precedent regarding the adequacy of objections is unforgiving. At the sentence hearing, the District Court asked counsel whether there were "any objections as to the factual accuracy of the [PSR] or as to the application of the guidelines as contained in the presentence report." Mr. Ramirez-Flores's counsel said he had both. The Court inquired "Which paragraph is in question?," and counsel identified paragraph 28. There was then some general discussion about whether the prior burglary conviction, described in paragraph 28 of the PSR, was violent or nonviolent.
Under the precedent of this Court, this objection does not preserve the issue for appellate review. In order to have done so, counsel would have been required to explain with "specificity and clarity," United States v. Bennett, 472 F.3d 825, 832 (11th Cir.2006) (per curiam), that he objected to the description of the dwelling burglarized as a "residence." This he did not do, and as a result we consider that fact admitted. See id. at 833-34.
This is all to say that, had the proceedings unfolded differently below, Mr. Ramirez-Flores might see relief. Indeed if he had had the benefit of Descamps at the time of his sentencing, that might also be true. But given the reality of the record on appeal, we are bound by our precedent to deny him relief now.
And the judgment of conviction showed that Ramirez-Flores pled to that indictment and was thus adjudged convicted of: "Burglary/Burglary (Non-Violent) (After June 20, 1985) — Second degree in violation of § 16-11-0312 of the S.C. Code of Laws." Indeed, the judgment of conviction checked a box which expressly stated that Ramirez-Flores had pled to the charge "as indicted."