Case: 14-11653   Date Filed: 03/31/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11653
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:13-cr-00186-HES-MCR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus


ELVIN LEONARDO PINEDA-CABRERA,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (March 31, 2015)

Before MARTIN, JULIE CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
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      Elvin Leonardo Pineda-Cabrera appeals his 24-month sentence, imposed

after he pleaded guilty to being unlawfully present in the United States after having

been deported in violation of 8 U.S.C. § 1326. At sentencing, the district court

applied an eight-level Sentencing Guidelines enhancement because it found that

Pineda-Cabrera’s 2005 misdemeanor conviction for burglary of a motor vehicle

was an “aggravated felony” under United States Sentencing Guidelines

§ 2L1.2(b)(1)(C). On appeal, Pineda-Cabrera contends that this enhancement was

error. First, he argues that, notwithstanding our holding to the contrary in United

States v. Christopher, 

(11th Cir. 2001), misdemeanor convictions

cannot qualify as aggravated felonies. Second, he argues that the record does not

establish that his prior conviction is an aggravated felony under the modified

categorical approach described in Descamps v. United States, 570 U.S. ___, 133 S.

Ct. 2276 (2013). After careful review, we affirm.

                                         I.

      We first address Pineda-Cabrera’s argument that his 2005 conviction for

burglary of a motor vehicle cannot qualify as an aggravated felony under the

Sentencing Guidelines because it was a misdemeanor under state law. We review

de novo the district court’s interpretation of the Sentencing Guidelines. United

States v. Jordi, 

, 1214 (11th Cir. 2005).




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      Section 2L1.2(a) of the Sentencing Guidelines provides for a base offense

level of eight if a defendant is convicted of unlawfully entering or remaining in the

United States after being deported. USSG § 2L1.2(a). Section 2L1.2 also provides

for an eight-level enhancement for defendants who had previously been deported

following a conviction for an aggravated felony. 

      The commentary for this section states that “‘aggravated felony’ has the

meaning given that term in section 101(a)(43) of the Immigration and Nationality

Act (8 U.S.C. § 1101(a)(43)) . . . .” 

comment. n.3(A). In turn, § 1101

includes in its definition of aggravated felony “a theft . . . or burglary offense for

which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G).

An attempt to commit a theft or burglary offense also qualifies as an aggravated

felony. See 

      Consistent with this definition, in Christopher, we held that a theft or

burglary conviction that is a misdemeanor under state law but results in a term of

imprisonment of at least one year is an “aggravated felony” within the meaning of

§ 1101 and USSG § 

; see also United States v. Ramirez,

, 354–55 (5th Cir. 2013) (observing that every circuit to consider the

issue has rejected the argument that misdemeanors cannot qualify as “aggravated

felonies” under § 1101 and USSG § 2L1.2).




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         Nevertheless, Pineda-Cabrera argues that we are not bound by Christopher

because that case interpreted a previous version of the Guidelines and because it

conflicts with the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 

, 

(2010). Both of these arguments are unavailing. First,

although it is true that USSG § 2L1.2 has been amended since we decided

Christopher, those amendments have left the definition of “aggravated felony”

untouched. Compare USSG § 2L1.2 comment. n.3(A) (2014) (“‘[A]ggravated

felony’ has the meaning given that term in section 101(a)(43) of the Immigration

and Nationality Act (8 U.S.C. § 1101(a)(43)) . . . .”), with USSG § 2L1.2

comment. n.1 (2000) (“‘Aggravated felony,’ is defined at 8 U.S.C. § 1101(a)(43) . .

. .”).

         Second, contrary to Pineda-Cabrera’s argument, Carachuri-Rosendo does

not stand for the proposition that a state misdemeanor conviction cannot qualify as

an aggravated felony. Instead, in that case, the Supreme Court held that a

conviction resulting in a term of imprisonment of less than one year does not

constitute an aggravated felony under the Immigration and Nationality Act (INA)

and Sentencing Guidelines simply because it could have resulted in a longer

sentence. See 

, 130 S. Ct. at 2589 (“The mere

possibility that the defendant’s conduct, coupled with facts outside of the record of

conviction, could have authorized a felony conviction under federal law is


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insufficient to satisfy the statutory command that a noncitizen be convicted of an

aggravated felony before he loses the opportunity to seek cancellation of removal.”

(quotation marks omitted and alteration adopted)).

      Under our prior precedent rule, we are bound to follow Christopher “unless

and until it is overruled by this court en banc or by the Supreme Court.” United

States v. Vega-Castillo, 

, 1236 (11th Cir. 2008) (per curiam)

(quotation omitted). Thus, the district court did not err in finding that a state

misdemeanor conviction can qualify as an aggravated felony for the purposes of

USSG § 2L1.2.

                                          II.

      Next, Pineda-Cabrera argues, for the first time, that the record does not

establish that his prior conviction for burglary of a motor vehicle was either a

burglary or theft offense within the meaning of 8 U.S.C. § 1101(a). The

Sentencing Guidelines enhancement for burglary and theft convictions refers to the

“generic” offenses of burglary and theft—that is, it refers to those offenses as they

are “generally committed.” See Nijhawan v. Holder, 

, 34, 

, 2299 (2009). Because generic burglary is the burglary of a building or

structure, burglary of a motor vehicle does not qualify as a burglary offense. See

Taylor v. United States, 

, 598, 

, 2158 (1990). Pineda-

Cabrera argues that the record also does not establish that he was convicted of


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generic theft because he was convicted under Texas Penal Code § 30.04—a

divisible statute that does not necessarily implicate generic theft. That statute

provides that “[a] person commits an offense if, without the effective consent of

the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to

commit any felony or theft.” Tex. Penal Code Ann. § 30.04 (emphasis added).

Thus, if Pineda-Cabrera had been convicted of breaking into a vehicle with the

intent to commit “any felony” (as opposed to theft specifically), this conviction

would not qualify as a “theft offense.” See 8 U.S.C. § 1101(a)(43)(G).

      Generally, when an appellant fails to raise an argument before the district

court, we review only for plain error. United States v. Rodriguez, 

,

1298 (11th Cir. 2005). However, where a party has “invited error,” we are

precluded from reviewing that argument at all. United States v. Harris, 

, 823–24 (11th Cir. 2006). “The doctrine of invited error is implicated when a

party induces or invites the district court into making an error.” United States v.

Stone, 

, 838 (11th Cir. 1998) (per curiam). “The doctrine stems from

the common sense view that where a party invites the trial court to commit error,

he cannot later cry foul on appeal.” United States v. Brannan, 

, 1306

(11th Cir. 2009).

      At sentencing, Pineda-Cabrera’s counsel expressly took the position that his

2005 conviction for burglary of a motor vehicle was an “attempted theft.”


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Sentencing Tr. 10, Apr. 2, 2014, ECF No. 50 (“[W]e are constrained in our

argument that the offense of burglary to a vehicle would fall under the domain of

attempted theft, and so our position, though, is whether or not that attempted theft

is a felony.” (emphasis added)). Thus, although he now argues that the record does

not in fact establish that this conviction was an attempted theft, he has invited any

error that may exist. Under this Court’s precedent, we may not review his

argument.

      AFFIRMED.




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