FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 November 22, 2013
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 12-1346
 v.                                           (D.Ct. No. 1:12-CR-00112-RBJ-1)
                                                          (D. Colo.)
 ELIAS ARMENDARIZ-PEREZ,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
PHILLIPS, Circuit Judge.



      Appellant Elias Armendariz-Perez pled guilty to one count of being found

in the United States after deportation following a felony conviction. He now

appeals his forty-month sentence, contending the district court improperly

characterized his prior Texas conviction for burglary of a habitation as a crime of

violence for the purpose of applying a sixteen-level enhancement pursuant to

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 2L1.2. We


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and

affirm.

                                   I. Background

      On February 28, 2012, immigration authorities discovered Mr. Armendariz-

Perez illegally in the United States and arrested him in Colorado. On June 11,

2012, Mr. Armendariz-Perez pled guilty to illegal reentry after deportation

subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1).

Prior to his guilty plea, Mr. Armendariz-Perez entered into a fast-track plea

agreement with the government and filed a statement in advance of that plea. In

the agreement, Mr. Armendariz-Perez stipulated he previously received a felony

conviction in Texas for “burglary of a habitation” and seven years probation. In

estimating the Guidelines computations and indicating some disagreement may

arise as indicated, the parties stated: “[t]he following specific offense

characteristics apply: There is a 12-level increase under § 2L1.2(b)(1)(A) because

[Mr. Armendariz-Perez] was previously removed following a conviction for a

felony that is a crime of violence.” The parties further agreed the government

would file a motion for a four-level downward departure based on the early

disposition (or fast-track) Guidelines provisions under U.S.S.G. § 5K3.1 unless,

following a presentence investigation, “it is determined [Mr. Armendariz-Perez]

has a previous conviction for a ‘crime of violence,’” as defined in U.S.S.G.

§ 2L1.2 application note 1, in which case it would only move for a two-level

                                         -2-
reduction. Under that definition, a “crime of violence” includes federal, state, or

local “burglary of a dwelling,” see U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), and we

define “dwelling” as including “any enclosed space that is used or intended for

use as a human habitation.” United States v. Rivera-Oros, 

, 1132

(10th Cir. 2009) (internal quotation marks omitted). 1 In addition, Mr.

Armendariz-Perez agreed he could not “contest the government’s determination”

of whether his prior crime constituted a crime of violence for the purpose of

moving for a downward departure under § 5K3.1. At the plea hearing, the district

court accepted Mr. Armendariz-Perez’s guilty plea, asking him multiple questions

concerning his plea agreement, including whether he understood the charges

against him and how the Guidelines may be applied in his case, to which he

affirmatively answered.

      Thereafter, a federal probation officer prepared a presentence report,

recommending a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for a

“crime of violence” based on Mr. Armendariz-Perez’s prior Texas conviction for

burglary of a habitation under Texas Penal Code § 30.02. 2 Specifically, the

      1
         The Guidelines and other sources of common law generally recognize
burglary of a dwelling, such as a home or residence, as a “crime of violence” due
to the increased possibility of the burglar confronting the resident, resulting in
substantial risk of force being used and causing an increased risk of physical and
psychological injury. See 

.

      2
          Texas Penal Code § 30.02, to which Mr. Armendariz-Perez pled guilty,
                                                                   (continued...)

                                         -3-
presentence report noted that on or about September 5, 1998, Mr. Armendariz-

Perez intentionally or knowingly entered a habitation with the intent to commit

theft without the effective consent of the owner, as indicated in the original

indictment to which he pled guilty. The probation officer then calculated Mr.

Armendariz-Perez’s total offense level at 21 and his criminal history category at

III, for a resulting advisory Guidelines range of forty-six to fifty-seven months in

prison. Thereafter, as referenced in the agreement, the government filed for a

two-level downward departure in his offense level, under U.S.S.G. § 5K3.1, for

the purpose of reducing the Guidelines range to thirty-seven to forty-six months

imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

      Mr. Armendariz-Perez did not file objections to either the presentence

report or the government’s § 5K3.1 motion. At the sentencing hearing, his

counsel stated Mr. Armendariz-Perez did not “have any objections or corrections

to the presentence report” or any objection to the government’s motion for a two-

level departure, which the government pointed out was “based on the fact that the

defendant’s conviction for burglary constitutes a crime of violence.” The district

      2
        (...continued)
states a person commits the offense of burglary if, without the effective consent
of the owner, he or she “enters a habitation, or a building (or any portion of a
building) not then open to the public, with intent to commit a felony, theft, or an
assault ....” Texas Penal Code Ann. § 30.02(a)(1). “Habitation” is defined under
another related Texas statute as a “structure or vehicle that is adapted for the
overnight accommodation of persons,” which includes, in part, “each structure
appurtenant to or connected with the structure or vehicle.” Texas Penal Code
Ann. § 30.01(1)(B).

                                         -4-
court granted the departure, resulting in an advisory Guidelines range of thirty-

seven to forty-six months, and the government requested a sentence at the low

end of the Guidelines range at thirty-seven months. While discussing the

sentencing factors in 18 U.S.C. § 3553(a), the district court noted, in part, Mr.

Armendariz-Perez “broke into a gentleman’s house, the circumstances are

unknown to the court,” and that “[h]e was convicted of burglary of a habitation

which is considered by the probation office and the law to be a crime of

violence.” After considering the requisite sentencing factors, the district court

sentenced Mr. Armendariz-Perez to forty months imprisonment. Mr. Armendariz-

Perez did not make a contemporaneous objection to the district court’s

characterization of his prior conviction or the sentence it imposed.

                                   II. Discussion

      For the first time on appeal, Mr. Armendariz-Perez asserts his prior

conviction for burglary of a habitation is not a “crime of violence” because a

burglary committed under Texas Penal Code § 30.02 may include structures

appurtenant to a residence or dwelling, which is broader than U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) and its commentary, which require burglary of a dwelling in

order to qualify as a crime of violence. See § 2L1.2(b)(1)(A)(ii) cmt. n. 1(B)(iii).

Because he did not raise this argument before the district court, Mr. Armendariz-

Perez contends our review is for plain error. In discussing plain error, he argues

the district court committed an error in failing to conduct a categorical approach

                                         -5-
and determine the statute is ambiguous because it defines burglary as including

both a dwelling and structures appurtenant to it. He argues it then should have

applied a modified categorical approach by relying on certain judicial records to

decide if the offense involved the burglary of a dwelling. 3 Because a possibility

exists he only burglarized an appurtenant structure, Mr. Armendariz-Perez

contends the district court committed an error that was plain by characterizing his

prior offense as a crime of violence. In making this argument, Mr. Armendariz-

Perez discusses the burglary statutes of several states, pointing out Texas is in the

minority in defining “burglary” to include outbuildings, and further suggests our

prior precedent requires a modified categorical approach.

      In support of applying a modified categorical approach, Mr. Armendariz-

      3
         When a defendant contests whether his prior conviction is a crime of
violence, we have generally held the trial court is required to take a categorical
approach by looking only to the fact of the conviction and the statutory definition
of the prior offense. United States v. Hernandez-Rodriguez, 

, 782
(10th Cir. 2004) (relying on Taylor v. United States, 

, 602 (1990)).
However, when the statute reaches behavior that may or may not encompass
conduct that constitutes a crime of violence, we and the Supreme Court have held
an exception exists allowing the district court to examine the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented, to
determine if the actual offense the defendant was convicted of qualifies as a crime
of violence. See Shepard v. United States, 

, 16 (2005); Hernandez-

. This modified categorical approach allows the
sentencing court to examine sources of undisputed information, rather than
conduct a fact-finding inquiry, thereby sparing it from conducting mini-trials on
prior offenses which have already been adjudicated. See United States v. Damon,

, 145-46 (1st Cir. 1997). Since the filing of this appeal, the Supreme
Court has elaborated further as to when the modified approach applies, as
discussed hereafter. See Descamps v. United States, 

(2013).

                                         -6-
Perez filed an unopposed motion to supplement the appellate record with judicial

records from his prior conviction, which we granted. He filed such supplemental

documents prior to the Supreme Court’s issuance of Descamps, contending these

documents will show that the state of Texas charged him with general burglary of

a habitation without any further specification as to whether it involved burglary of

a dwelling or an appurtenant structure. As a result, he argued, both the third and

fourth prongs of our plain error review are met because he can show a reasonable

probability of a different outcome absent the district court’s plain error in treating

his conviction as a crime of violence and a strong possibility the district court

would have sentenced him at a lower Guidelines range without such an error.

      Since Mr. Armendariz-Perez’s supplemental motion, the Supreme Court, in

Descamps, explained that the “modified categorical approach serves a limited

function: It helps effectuate the categorical analysis when a divisible statute,

listing potential offense elements in the alternative, renders opaque which element

played a part in the defendant’s 

. However, it

further explained the modified categorical approach does not apply if “state law

defines burglary not alternatively, but only more broadly than the generic

offense.” 

such supplemental authority, Mr. Armendariz-Perez now

argues the modified categorical approach does not apply, as the Texas statute at

issue is not divisible by setting out one or more elements of the offense in the

alternative, but is written more broadly, and, instead, only a categorical approach

                                          -7-
applies, under which he must prevail.

      In countering Mr. Armendariz-Perez’s claims, the government asserts he

invited the error he now raises because he “urged the district court to find that his

prior conviction qualifies as a crime of violence” in his plea agreement and

further waived the issue by not objecting to the facts in the presentence report,

including that he committed a crime of violence for burglary of a dwelling.

Alternatively, it contends that if plain error analysis applies, his argument must

fail because he now has the burden of proof to show his conviction was not a

crime of violence. It suggests the documents he provided do not meet this

burden, and therefore, he fails to establish a different outcome in the district court

proceeding or the possibility of a lesser sentence.

      We begin by explaining an “invited error” “prevents a party from inducing

action by a court and later seeking reversal on the ground that the requested

action was in error.” United States v. Lopez-Medina, 

, 733 n.10

(10th Cir. 2010) (internal quotation marks omitted). “Our prior cases make clear

that waiver bars a defendant from appealing an invited error.” United States v.

Carrasco-Salazar, 

, 1272 (10th Cir. 2007). “[W]aiver is the

intentional relinquishment or abandonment of a known right” and is

“accomplished by intent” rather than neglect. 4 

marks

      4
        As the Supreme Court has explained, “forfeiture is the failure to make the
timely assertion of a right, [while] waiver is the intentional relinquishment or
                                                                        (continued...)

                                          -8-
omitted). In addition, we have held that once a defendant’s guilty plea is entered

and accepted by the court, he is bound by the agreement, subject only to

provisions regarding its withdrawal. See United States v. Novosel, 

,

1293 n.3 (10th Cir. 2007).

      In this case, contrary to the government’s contention, a fair reading of the

plea agreement shows the parties merely estimated the Guidelines computations,

and, in doing so, stated a twelve-level–not a sixteen-level–increase for a “crime of

violence” applied. 5 While the parties now agree the reference to a twelve-level

increase was mistaken, such an error prevents a conclusion Mr. Armendariz-Perez

invited the sixteen-level enhancement error of which he now complains. In

addition, while the parties indicated in the plea agreement that

§ 2L1.2(b)(1)(A)(ii) applied for “a crime of violence,” they also agreed the

government would determine, at a later date, whether Mr. Armendariz-Perez

committed a crime of violence for the purpose of moving for a downward

departure under § 5K3.1. Thus, ambiguity exists as to whether Mr. Armendariz-



      4
        (...continued)
abandonment of a known right.” United States v. Olano, 

, 733
(1993) (internal quotation marks omitted). See also United States v. Jones, 

1292, 1298 n.1 (10th Cir. 2008) (similarly clarifying difference and noting
“forfeiture” is sometimes mistakenly or interchangeably referred to as “waiver”).
      5
         Section 2L1.2(b)(1)(A)(ii) prescribes a sixteen-level enhancement for a
prior conviction involving a “crime of violence.” A crime of violence means
“any of the following offenses under federal, state, or local law [including] ...
burglary of a dwelling.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

                                         -9-
Perez agreed in his plea agreement he committed a crime of violence for the

purpose of any invited error analysis.

      Nevertheless, even if he did not invite the error of which he now complains

or, as the government contends, waive the issues raised for the first time on

appeal, Mr. Armendariz-Perez cannot prevail under a plain error review. Under

the plain error test, an appellate court may correct an error not raised at trial if (1)

an error occurred; (2) that is “plain”; and (3) which affects substantial rights; and

if these first three criteria are met, we may exercise our discretion to correct the

error if it (4) seriously affects the fairness, integrity, or public reputation of the

judicial proceedings. See Johnson v. United States, 

, 466-67 (1997).

A defendant has the burden of establishing all of these criteria and because they

are conjunctive, we need not continue our analysis if we determine any one of

them is not met. See United States v. Gonzalez Edeza, 

, 1250 (10th

Cir. 2004). We note that to constitute plain error, it must be an error which is

clear or obvious under current or well-settled law. See United States v. McGehee,

, 876 (10th Cir. 2012); United States v. Edgar, 

, 871

(10th Cir. 2003). Well-settled law means the Supreme Court or this court must

have addressed the issue. See 

.

      In this case, even if we presume the district court erred in characterizing




                                           -10-
the prior conviction as a crime of violence, 6 the error was not plain. This is

because the district court had no basis to believe Mr. Armendariz-Perez’s prior

crime did not involve burglary of a dwelling or a crime of violence due to his

failure to dispute such characterization of his prior offense, either in the

presentence report or at the sentencing hearing. See United States v. Zubia-

Torres, 

, 1208-09 (10th Cir. 2008). Instead, Mr. Armendariz-

Perez’s failure to object would not have alerted the district court to any error,

plain or otherwise, in its characterization or signal an obligation by it to apply a

categorical approach to the statute or determine whether a modified categorical

approach even applied for the purpose of considering any prior sentencing

documents, which neither party deemed necessary for proffer. Indeed, while the

district court did not have the benefit of the Supreme Court’s analysis of

Descamps at the time of sentencing, the fact that the elements of the Texas statute

do not appear to be divisible establishes no error occurred in its failure to apply a

modified categorical approach. 7 

. For these reasons, we

      6
         This court has generally held it is not “error” for a district court to adopt
uncontested facts in the presentence report based on a defendant’s failure to
allege a factual inaccuracy. See United States v. Rodriguez-Delma, 

, 1254 (2006); United States v. Overholt, 

, 1253 (10th Cir.
2002).
      7
         As previously noted, Texas Penal Code § 30.02 states a person commits
the offense of burglary if, without the effective consent of the owner, he or she
“enters a habitation, or a building (or any portion of a building) not then open to
the public, with intent to commit a felony, theft, or an assault,” and habitation is
                                                                        (continued...)

                                         -11-
also cannot say the district court committed plain error in failing to sua sponte

consider or apply either approach in assessing whether the prior conviction

constituted a crime of violence. See United States v. Easter, 

,

1556-57 (10th Cir. 1992). Similarly, while Mr. Armendariz-Perez claims the

statute, on its face, under a categorical review is too broad or ambiguous to show

he actually burglarized a dwelling, no controlling authority exists in this circuit 8

or the Supreme Court on this issue. Rather, it appears the only court which has

considered Texas Penal Code § 30.02 on categorical grounds is the Fifth Circuit,

which has jurisdiction over federal crimes in Texas and determined, based on its

examination of the statute alone, that the offense of “burglary of a habitation”

under Texas Penal Code § 30.02 is the same as “burglary of a dwelling” for the



      7
       (...continued)
defined as a “structure or vehicle that is adapted for the overnight accommodation
of persons,” which includes, in part, “each structure appurtenant to or connected
with the structure or vehicle.” Texas Penal Code Ann. §§ 30.01(1)(B) and
30.02(a)(1).
      8
         While this circuit has not decided the matter at hand, in a previous case
involving the same issue we assumed–without deciding–that Texas Penal Code
§ 30.02 covers both burglaries of dwellings, which are violent crimes under
§ 2L1.2, as well as burglaries of “appurtenances,” which are not crimes of
violence. See United States v. Ventura-Perez, 

, 673-74 (10th Cir.
2012). We did so for the purpose of more readily disposing of the case on other
grounds, applying the modified categorical approach and viewing the applicable
court documents, which clearly indicated the defendant’s burglary involved a
home, and not an appurtenant building. 

In light of Descamps, it
now appears a modified categorical approach is not applicable to the Texas
statute. Nonetheless, the fact remains that this circuit has never conducted a
categorical analysis of the Texas statute at issue.

                                          -12-
purpose of applying U.S.S.G. § 2L1.2 for a “crime of violence.” See United

States v. Garcia-Mendez 

, 456-57 (5th Cir. 2005). This position is

contrary to Mr. Armendariz-Perez’s argument, even though it does not have

precedential authority in this circuit. In any event, no controlling law, or even

law from another circuit dealing with a categorical review of the Texas statute,

conclusively holds the district court erred in applying a sixteen-level enhancement

for its characterization of his prior conviction as a crime of violence, leaving us

to conclude the error, if any, was not plain. See 

(holding

error is plain only if error is clear or obvious under current or well-settled law).

      Having made these determinations, we need not elaborate further on Mr.

Armendariz-Perez’s arguments, 9 including conducting our own examination of the

Texas statute or providing a further explanation of why a modified categorical

analysis does not apply and no examination is needed of the prior conviction

documentation submitted for the first time on appeal. Accordingly, we conclude

the district court did not commit plain error in applying a sixteen-level

enhancement for his prior conviction under Texas Penal Code § 30.02.




      9
        We note Mr. Armendariz-Perez’s reliance on other circuit courts’
decisions examining state burglary statutes other than the Texas statute at issue is
unpersuasive and immaterial to our waiver and plain error review, and we need
not consider those statutes here.

                                          -13-
                         III. Conclusion

For the foregoing reasons, we AFFIRM Mr. Armendariz-Perez’s sentence.

                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




                              -14-
No. 12-1346, United States v. Armendariz-Perez

PHILLIPS, Circuit Judge, dissenting



       The district court enhanced Armendariz’s sentence by 16 offense levels after

finding at the sentencing hearing that “[h]e was convicted of burglary of a habitation,

which is considered by the probation office and the law to be a crime of violence.”1

(ROA vol. 2, at 24 (emphasis added).) In doing so, the district court applied the

categorical approach to determine that a Texas “burglary of a habitation” qualifies as a

“burglary of a dwelling” (and hence a “crime of violence”) under U.S.S.G. §

2L1.2(b)(1)(A)(ii), n.1(B)(iii). Because I believe that in opposing the enhancement

Armendariz has met the four requirements of plain error, I would reverse and remand for

resentencing.

       1. Error

       In determining that convictions for burglary of a habitation under Texas Penal

Code § 30.02 categorically qualify as a burglary of a dwelling under § 2L1.2, the district

court failed to consider United States v. Ventura-Perez, 

(10th Cir. 2012).

1
 By this language, I believe the district court found that these Texas burglaries
categorically are crimes of violence. But immediately before this, the court also said—
without any support in the presentence report or elsewhere in the record—that
Armendariz “broke into a gentleman’s house, the circumstances are unknown to the
court.” (ROA vol. 2, at 24.) If by this the district court in fact meant to apply a modified
categorical approach, it did so incorrectly. The question is not whether Armendariz had in
fact burglarized a house, but instead whether he had necessarily been convicted of doing
so. See, e.g., Descamps v. United States, 

, 2286 (2013) (“Whether
Descamps did break and enter makes no difference. And likewise, whether he ever
admitted to breaking and entering is irrelevant.” (emphasis in original)).
There, this Court applied a modified categorical analysis to the definition of “habitation”

as used in § 30.01(1)(A), (B). 

676. It divided “habitation” into two parts,

reasoning that even if the second part (§ 30.01(B)) included non-dwellings “the modified

categorical approach would permit the government to show that a defendant’s prior

conviction” was for a burglary under the first part (§ 30.01(1)(A)), which included only

dwellings. 

see also United States v. Porras-Rubi, 468 F. App’x 892, 898 (10th

Cir. 2012) (unpublished) (also applying modified categorical approach to “habitation”

under the same Texas burglary statute).

       In my view, the district court erred by treating all burglaries of habitations under

Texas Penal Code § 30.02 as “burglaries of dwellings” under U.S.S.G. § 2L1.2

n.1(B)(iii). The district court should have followed Ventura-Perez and divided

“habitation” into its two constituent parts. Once it had done so, it could have compared

each part to the definition of generic “dwelling” given by United States v. Rivera-Oros,

(10th Cir. 2009).

       In Rivera-Oros, this Court defined generic “dwelling” as “not limited to

permanent and immovable structures or buildings,” but “[r]ather a ‘dwelling’ includes2

any ‘enclosed space that is used or intended for use as a human habitation.’”3 

2
  As shown in footnote 4, the same criminal definition in Black’s Law Dictionary
exclusively “includes” as dwellings only four other “enclosed spaces”: buildings, parts of
buildings, tents, and mobile homes used or intended for use as a human habitation.
3
  In interpreting the Sentencing Guidelines, this Court seeks to apply the Sentencing
Commission’s intent. See United States v. O’Flanagan, 

, 1235 (10th Cir.
2003). The definition adopted in Rivera-Oros passes this test. In 1993, the Commission
revealed its intent on this subject when it declined to expand “burglary of a dwelling” to
                                              2
1132 (quoting Black’s Law Dictionary 582 (9th ed. 2009)).4 Because sheds, unattached

garages, and other appurtenant structures are not intended for use as human habitations,

and because not all other structures intended for human habitation are necessarily

enclosed,5 the second kind of Texas “habitations”—appurtenant structures—do not

qualify as “dwellings” under U.S.S.G. § 2L1.2. See Texas Penal Code § 30.01(1)(B).

       In light of Ventura-Perez and Rivera-Oros, the district court needed the Shepard

documents to see whether Armendariz was necessarily convicted of burglarizing a

structure adapted for the overnight accommodation of persons. On appeal, Armendariz

has provided us with the Shepard documents, and these documents do not show

Armendariz’s conviction was on such narrow grounds.6 Texas case law tells us that


include “‘any adjacent outbuilding considered part of the dwelling.’” See 58 Fed. Reg.
67533 (proposed Dec. 21, 1993).
4
  The full definition is as follows: “dwelling house. (15c) 1. The house or other structure
in which a person lives; a residence or abode. 2. Real estate. The house and all buildings
attached to or connected with the house. 3. Criminal law. A building, a part of a building,
a tent, a mobile home, or another enclosed space that is used or intended for use as a
human habitation. The term has referred to connected buildings in the same curtilage but
now typically includes only the structures connected either directly with the house or by
an enclosed passageway.—Often shortened to dwelling.—Also termed (archaically)
mansion house; (more broadly) dwelling place. Black’s Law Dictionary 582 (9th ed.
2009).
5
  Texas’s definition of “building” is limited to enclosed structures. Its definition of
“habitation” is not. See Texas Penal Code § 30.01(1), (2).
6
  The grand jury indictment in the Texas state court charged Armendariz with
burglarizing a “habitation” without the effective consent of Emilio Perez, the owner
thereof,” in violation of Texas Penal Code § 30.02(a)(1)(c)(2). (Supp. ROA vol. 1, doc. 1,
at 1.) The Order Deferring Adjudication listed as the offense charged “Burglary of a
Habitation Texas Penal Code § 30.02(a)(1)(c)(2).” (Id. at 2.) The “Plea Bargain
Agreement” did not specify the charged offense but did provide for “Restitution of
$300.00 Emilio Perez, 970 Stephens, Stephenville, TX 76401, and $220.00 to Wild Bill’s
Pawn Shop 1001 N. Fisk, Brownwood, TX 76801.” (Id. at 6.) The “Stipulation of
Evidence” noted that he had admitted entering a “habitation” “without the effective
                                            3
convictions under Texas Penal Code § 30.02 can reach “non-dwellings,” including

appurtenant structures not adapted for overnight accommodation.7 Accordingly, because

Armendariz was not necessarily convicted of burglarizing a generic “dwelling,” the

district court should not have enhanced his sentence by 16 offense levels.8

       Without discussing Ventura-Perez, the panel agrees with the district court that the

categorical approach applies here. See Order and Judgment at 11 (“[T]he fact that the

elements of the Texas statute do not appear to be divisible establishes no error occurred

in its [the district court’s] failure to apply a modified categorical approach.”). In

concluding this, the panel relies on Descamps v. United States, 

(2013), to

establish that the “habitation” element in the Texas burglary statute is indivisible.

consent of Emilio Perez, the owner thereof.” (Id. at 9.) At his plea hearing, the judge
informed him that he was charged with burglary of a “habitation.” (Supp. ROA vol. 1,
doc. 3, at 6.) In response to the judge’s question, Armendariz admitted having entered a
“habitation.” (Id. at 11.) A “Criminal Docket” carries a notation that the offense was
“Burglary of a Habitation with intent to commit theft § 20.02(a)(1)(c)(2).” (Supp. ROA
vol. 1, doc. 2, at 1.) The government has offered nothing to counter these documents, and
when asked at oral argument it could not identify any additional Shepard document
narrowing the conviction.
7
  See, e.g., Mitchell v. State, No. 14-95-01074-CR, 

, at *2–*3 (Tex. Ct.
App. June 25, 1998) (finding that an unconnected storage shed twenty or thirty feet from
the house was appurtenant to the house under the Texas burglary statute); Darby v. State,

, 371–72 (Tex. Ct. App. 1998) (finding that an unattached garage used
for storage and located about nine feet from the home was appurtenant to the house under
the Texas burglary statute); Tennyson v. State, No. 11-92-107-CR, 

,
at *2 (Tex. Ct. App. 1993) (finding that a connected carport open on three sides was a
habitation under the Texas burglary statute); Jones v. State, 

, 319 (Tex.
Ct. App. 1985) (finding that an unattached garage is a structure appurtenant to a residence
and thus a “habitation”).
8
  Although I agree with the panel that no one alerted the district court to the possible
error, I do not think this matters in determining whether the district court erred. See
United States v. Olano, 

, 733 (1993) (“If a legal rule was violated during the
district court proceedings, and if the defendant did not waive the rule, then there has been
an ‘error’ within the meaning of Rule 52(b) despite the absence of a timely objection.”).
                                               4
       I disagree with the panel’s reading of Descamps. That case involves a far different

question from the one presented here, and nothing in that case counsels or compels that

this Court abandon Ventura-Perez. Rather than involving the instant question whether a

statutory element (e.g., “habitation”) was divisible, Descamps addressed an unrelated

question whether the government could prove a missing generic burglary element in

California’s burglary statute (unlawful entry) by using Shepard documents to show that a

defendant had in fact unlawfully entered the property he 

–

82. Although the Ninth Circuit allowed this expansion of the modified categorical

approach, the Supreme Court did not. 

Instead, the Court reaffirmed that the

controlling issue is whether a defendant necessarily was convicted of each generic

element, not whether he “committed generic burglary, and so hypothetically could have

been convicted under a law criminalizing that conduct.” 

(emphasis in

original).

       Here, by contrast, the issue is whether the two kinds of structures from separate

statutory phrases in Texas’s definition of “habitation” are alternative elements. Nothing

in Descamps disallows Ventura-Perez’s use of the modified categorical approach to

evaluate whether either of the statutory phrases for habitation matched generic

“dwelling.” In fact, responding to a hypothetical statute used by the Ninth Circuit to

illustrate its view, the Court in Descamps said that a statute criminalizing assault with any

of eight specified weapons would be divisible under a modified categorical approach to

try to learn whether a defendant had necessarily been convicted of using a specific kind

of weapon, e.g., a gun. 

The Court contrasted that with another hypothetical

                                             5
statute requiring “only an indeterminate ‘weapon.’” In this second case, the Court said

that “even if in many cases, the jury could have readily reached consensus on the weapon

used, a later sentencing court cannot supply that missing judgment.” 

statute defining “habitation” is more like Descamps’s first hypothetical

statute. It provides two separate kinds of habitation—(i) “structures adapted for the

overnight accommodation of persons” and (ii) “structure[s] appurtenant or connected

with the structure.” Just as a prosecutor could charge the use of any one of the eight

particular kinds of weapon under Descamps’s first hypothetical statute, a Texas

prosecutor could charge burglary of either kind of habitation found in the two separate

statutory phrases.

       However, even if the panel is correct that “habitation” is indivisible despite

Ventura-Perez, Armendariz still should prevail. The indivisible “habitation” element

would lump together all the structures from the two separate statutory phrases. This

lumped “habitation” would then include the non-dwellings already mentioned—sheds,

detached garages, and other outbuildings not intended for overnight accommodation, as

well as any unenclosed structures intended for overnight accommodation. Because the

lumped “habitation” under the categorical approach would be broader than generic

“dwelling” as defined in Rivera-Oros, no convictions under Texas’s “burglary of a

habitation” statute could qualify as a “burglary of a dwelling” under U.S.S.G. § 2L1.2.

See 

(“[I]f the statute sweeps more broadly than the generic

crime, a conviction under that law cannot count as an ACCA predicate, even if the



                                             6
defendant actually committed the offense in its generic form. The key, we emphasized, is

elements, not facts.”).

       2. Plain

       When the district court categorically found that Armendariz’s Texas burglary

conviction qualified as a burglary of a dwelling under U.S.S.G. § 2L1.2, the court

committed error that was plain. See United States v. Olano, 

, 734 (1993).

(treating “plain” as the equivalent of clear or obvious under current law). Here, the legal

authorities showing the error were all readily available: (1) Ventura-Perez’s treatment of

“habitation” as divisible under the Texas burglary statute; (2) Rivera-Oros’s definition of

generic “dwelling”; and (3) the Texas cases finding that appurtenant structures such as

sheds and detached garages qualify under its burglary statute as “habitations.” Combining

these three legal pieces, I conclude the district court committed plain error by treating all

Texas burglary of habitation convictions as qualifying as burglary of dwelling

convictions under U.S.S.G. § 2L1.2.

       3. Substantial Prejudice

       In United States v. Zubia-Torres, 

(10th Cir. 2008), this Court

reviewed for plain error a case similar to this one. As here, the district court enhanced a

defendant’s sentence by 16 offense levels under U.S.S.G. § 2L1.2, but this time after

finding a prior conviction for “drug trafficking” under a Nevada statute. 

Because the defendant had failed to object to the enhancement in the district court, he had

the burden on appeal to show substantial prejudice. 

The Court found that he

had failed to meet his burden, saying that he could show that the district court’s ruling

                                              7
disadvantaged him “only if the government were unable to prove, by appropriate judicial

documents, that his prior conviction was for drug trafficking.” 

He needed to

“present evidence on appeal indicating that imposition of the enhancement was erroneous

. . . .” 

same lines, the Court found that he could demonstrate that his

substantial rights had been prejudiced by “show[ing] that the error ‘affected the outcome

of the district court proceedings.’” 

(quoting United States v. Gonzalez-Huerta,

, 732 (10th Cir. 2005)). This language strongly suggests that the defendant

could have prevailed on appeal had he provided to the panel the necessary Shepard

documents showing a likelihood that with these he would have obtained a different result

in the district court.

       But in United States v. Castellanos-Barba, 

(10th Cir. 2011),

another case involving an enhancement of 16 offense levels under U.S.S.G. § 2L1.2 for a

“drug trafficking” conviction, this Court felt “bound by circuit precedent to conclude that

the error did not affect substantial rights.” 

(citing 

). It read Zubia-Torres as requiring a “defendant arguing plain error in the

application of § 2L1.2 to make a showing before this court that his earlier conviction did

not, in fact, involve drug trafficking conduct.” 

The Court believed

that Zubia-Torres required a “showing that his conviction was for transportation for

personal use rather than drug trafficking conduct . . . 

. It not only

switched the burden on appeal, it changed what needed proved.

       Presumably, the Court felt bound by this sentence from Zubia-Torres: “Even on

appeal, the defendant offers no evidence that his conviction was for mere possession

                                              8
rather than sale.” But the very next sentence clarifies that the standard on appeal is not

whether a defendant can prove his actual conduct would not have met the generic

definition but instead the standard is whether the Shepard documents would have

changed the outcome in the district court: “We therefore have no way to know whether

the enhancement properly applied.” 

(emphasis added).

For these reasons, I believe that Castellanos-Barba misread Zubia-Torres.

       In Olano, while addressing the substantial-prejudice prong, the Supreme Court

focused on whether the error in the district court 

. The Court

said that a defendant on appeal arguing plain error must show prejudice. 

this

burden of persuasion, the Court said that a defendant must show that the error “affected

the outcome of the district court proceedings.” 

Nothing in Zubia-

Torres suggested any intent to depart from Olano’s plain-error framework. In fact, as

noted above, in determining whether a defendant had shown prejudice, Zubia-Torres

repeatedly focused on whether the error would have affected the outcome in the district

–10. In Zubia-Torres, the Court could not answer that question

since it had no Shepard documents by which to determine whether the “imposition of the

enhancement was erroneous . . . .” 

Here, we do have the necessary Shepard

documents, and they show that they would have affected Armendariz’s sentencing

calculation.

       4. Fairness, Integrity, or Public Reputation of Judicial Proceedings

       Believing that Armendariz has met the first three prongs of plain error review, I

would favor exercising discretion to correct the error because “it seriously affects the

                                              9
fairness, integrity, or public reputation of the judicial proceedings.” 

. Here, had the district court not treated Armendariz’s Texas burglary

conviction as a burglary of a dwelling (and hence as a “crime of violence”), he would

have received just a four-level enhancement under U.S.S.G. § 2L1.2(b)(1)(D). In

addition, under the plea agreement, had the probation office found no crime of violence

the district court would have been fully justified in awarding Armendariz a full four-level

reduction under the fast-track guideline, U.S.S.G. § 5K3.1. Accordingly, rather than

being sentenced at a total offense level of 19, he may well have been sentenced at a total

offense level of 6 and a criminal history category of III. Accordingly, his advisory range

may have fallen from 37–46 months to 2–8 months. In cases with less severe disparities,

this Court has exercised its discretion to correct the error. See United States v. Cordery,

, 1108 (10th Cir. 2011) (using its discretion under the fourth prong of plain

error analysis when the bottom of the advisory range mistakenly used was 56 months and

should have been 51 months).

       For all these reasons, I respectfully dissent.




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