REVISED October 28, 2008

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

                                                               FILED
                                 No. 07-41004               October 6, 2008

                                                         Charles R. Fulbruge III
                                                                 Clerk
UNITED STATES OF AMERICA

                                           Plaintiff - Appellee
v.

GUADALUPE CONSTANTE, III

                                           Defendant - Appellant



                Appeal from the United States District Court
              for the Southern District of Texas, Corpus Christi


Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:
      Defendant-appellant Guadalupe Constante, III appeals his sentence of
fifteen years imprisonment and five years supervised release imposed by the
district court after he pleaded guilty to possession of a firearm subsequent to a
felony conviction. Constante’s principal argument on appeal is that the district
court erred in concluding that his prior burglary convictions under § 30.02(a)(3)
of the Texas Penal Code were violent felonies under 18 U.S.C. § 924(e)(1). We
agree, and we VACATE the sentence and REMAND the case to the district court
for resentencing.
                                        No. 07-41004


             I. FACTUAL AND PROCEDURAL BACKGROUND
       Guadalupe Constante, III pleaded guilty to possession of a firearm
subsequent to a felony conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The presentence report (the “PSR”) determined that Constante was subject to a
mandatory minimum sentence of fifteen years imprisonment pursuant to 18
U.S.C. § 924(e) because he had at least three prior convictions for “violent
felonies”: four separate burglaries of a habitation, arson, and aggravated
robbery. Constante objected to the PSR, arguing that his burglary convictions
were not generic burglaries as contemplated by Taylor v. United States, 

(1990), and that the government had not established that the burglary and
arson offenses were committed on different occasions.1                    The district court
overruled both of these objections and sentenced Constante to fifteen years
imprisonment and five years supervised release.                      Without the § 924(e)
enhancement, the statutory maximum sentence would have been ten years
imprisonment and three years supervised release. See 18 U.S.C. §§ 924(a)(2)
and 3583(b)(2).
                                     II. DISCUSSION
       The court reviews the application of a § 924(e) sentencing enhancement
de novo. United States v. Fuller, 

, 278 (5th Cir. 2006); United States
v. Munoz, 

, 419 (5th Cir. 1998). The district court’s factual findings
are reviewed for clear error. United States v. Villanueva, 

, 203
& n.9 (5th Cir. 2005).
       Pursuant to § 924(e)(1), a defendant convicted under § 922(g) who has
three prior convictions “for a violent felony . . . committed on occasions different
from one other” is subject to a mandatory minimum sentence of fifteen years

       1
         Constante did not dispute that his convictions for arson and aggravated robbery
qualify as violent felonies under § 924(e). His objection was limited to the burglary convictions.

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imprisonment. A “violent felony” is defined as any crime that is punishable by
a term of imprisonment exceeding one year and “is burglary, arson, or extortion,
involves the use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
The Supreme Court has interpreted burglary in § 924(e) in terms of its modern
“generic” usage. 

. Specifically, the Taylor definition of
a generic burglary requires that the state statute contain, at a minimum, the
following elements: “an unlawful or unprivileged entry into, or remaining in, a
building or other structure, with intent to commit a crime.” 

      In Texas, a person commits burglary if, without the effective consent of the
owner, that person either “enters a habitation, or a building (or any portion of
a building) not then open to the public, with the intent to commit a felony, theft,
or an assault,” TEX. PENAL CODE ANN. § 30.02(a)(1), or “enters a building or
habitation and commits or attempts to commit a felony, theft, or an assault,”
TEX. PENAL CODE ANN. § 30.02(a)(3). This court has previously held that the
offense of burglary of a habitation under § 30.02(a)(1) of the Texas Penal Code
qualifies as a generic burglary for purposes of § 924(e). United States v. Silva,

, 162 (5th Cir. 1992); see also 

. However, this
court has not, in a published opinion, affirmatively stated that burglary under
§ 30.02(a)(3) of the Texas Penal Code does not qualify as a generic burglary
under the Taylor definition.
      In determining whether a burglary qualifies as a generic burglary for
purposes of a § 924(e) sentencing enhancement, the Supreme Court has limited
the scope of evidence that a court may review to: “the statutory definition,
charging documents, written plea agreement, transcript of plea colloquy, and
any explicit factual findings by the trial judge to which the defendant assented.”
Shepard v. United States, 

, 16 (2005).

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      In concluding that Constante’s burglary convictions qualified as generic
burglaries, the district court relied primarily on Silva. In Silva, this court stated
that “Section 30.02 of the Texas Penal Code is a generic burglary statute,
punishing nonconsensual entry into a building with intent to commit a 

. Although the court did not specify which subsection of § 30.02
Silva was convicted under, the court could have only been referring to
§ 30.02(a)(1) because it is the only subsection that includes the element of
specific intent. Since § 30.02(a)(3) does not include the element of specific intent,
Silva cannot support the district court’s conclusion that a conviction under
§ 30.02(a)(3) is a violent felony for purposes of 18 U.S.C. § 924(e).
      In United States v. Herrera-Montes, this court considered whether
burglary under a Tennessee statute was a generic burglary and therefore
qualified as a “crime of violence” under U.S.S.G. § 2L1.2. 

, 391 (5th
Cir. 2007); see also James v. United States, 

, 1596 (2007) (noting
that the definition of “crime of violence” for a career offender enhancement
“closely tracks” the definition of “violent felony” for an armed career criminal
enhancement). The Tennessee burglary statute, TENN. CODE ANN. § 39-14-
402(a)(3), is, in relevant part, identical to § 30.02(a)(3) of the Texas Penal Code.

. Neither statute requires an element of specific
intent at the time of entry. The court concluded that “Taylor requires that the
defendant intend to commit a crime at the time of unlawful entry.”               

conviction under TENN. CODE ANN. § 39-14-402(a)(3) was not a
crime of violence for sentencing enhancement purposes. 

court appeared to be on the verge of directly stating that
Herrera-Montes applies to § 30.02(a)(3). This exact question—whether a
conviction under § 30.02(a)(3) is a violent felony under 18 U.S.C. § 924(e)—was
presented to the court in United States v. Fambro, 

(5th Cir. 2008).
Although the court positively cited to Herrera-Montes and suggested that the

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defendant was correct in arguing that a conviction under § 30.02(a)(3) did not
meet the Taylor definition of a generic burglary, the court ultimately avoided
ruling on this issue because it determined that the defendant had first raised the
issue in his reply brief. 

.
       The court has twice specifically concluded that § 30.02(a)(3) does not
satisfy the Taylor definition of a generic burglary because it lacks the requisite
element of intent, but neither opinion was published. United States v. Castro,
No. 07-40762, 

, at *1 (5th Cir. Apr. 3, 2008) (citing Herrera-

); United States v. Beltran-Ramirez, No. 07-50218,

, at *1 (5th Cir. Feb. 22, 2008) (same).2 The district court held
Constante’s sentencing hearing on October 11, 2007, prior to the release of either
of these unpublished opinions.
       The government suggests that it is not clear whether Constante was
convicted of burglary under § 30.02(a)(1) or (3).                      Constante’s burglary
indictments allege that he “intentionally or knowingly enter[ed] a habitation,
without the effective consent of . . . the owner . . . and attempted to commit or
committed theft of property.” This language is similar to the statutory language
in § 30.02(a)(3). Moreover, the burglary indictments never reference Constante’s
intent to commit theft at the time of entry.3 While these facts strongly suggest


       2
         Pursuant to 5TH CIR. R. 47.5.4, unpublished opinions issued after January 1, 1996
are not precedent except under limited circumstances. The frequency with which this issue
appears warrants a published opinion with full precedential weight pursuant to 5TH CIR. R.
47.5.1.
       3
          The “intentionally or knowingly” language in the indictment refers to a general
criminal intent requirement, but not the specific intent element contained in § 30.02(a)(1) and
the Taylor definition of generic burglary. See Beasley v. McCotter, 

, 120 (5th Cir.
1986) (noting that § 30.02(a)(1) requires “specific intent to commit a felony or theft in the
building” and § 30.02(a)(3) requires only the more general culpable mental state such as
intentionally or knowingly). In other words, under § 30.02(a)(3) a defendant must
intentionally or knowingly enter the building, but he would not have to intend to commit a
felony, theft, or assault at that time. Only this latter type of specific intent is relevant to the
Taylor definition of generic burglary.

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that Constante was convicted under § 30.02(a)(3), we are not required to decide
this question because the government failed to carry its burden of proving that
Constante was convicted under a statute that satisfies the Taylor definition of
generic burglary.
      The government argues that after it established the prior convictions,
Constante had the burden of proving the invalidity of those convictions by a
preponderance of the evidence. In support of this argument, the government
cites United States v. Bookman, No. 06-11373, 

, at *2 (5th Cir.
Jan. 23, 2008) and United States v. Barlow, 

, 89 (5th Cir. 1994). These
cases relate to the constitutional validity of a guilty plea and not to establishing
the precise statute under which the defendant was convicted. The government
acknowledges that it bears the initial burden of establishing the prior conviction.
Although it established the four burglary convictions, it failed to establish that
any conviction was specifically under § 30.02(a)(1).        See United States v.
Rodriguez, 

, 524 (5th Cir. 2008) (“The Government bears the burden
of proving by a preponderance of the relevant and reliable evidence that the facts
support a sentencing enhancement.” (citing United States v. Herrera-Solorzano,

, 50 (5th Cir. 1997))). Thus, if—as the government contends—it is
unclear under which subsection of § 30.02(a) Constante pleaded guilty, then the
government failed to carry its burden of proving that the burglary convictions
qualify for a § 924(e) sentencing enhancement. See also Beltran-Ramirez, 

, at *1 (finding that the district court erred in applying a sentencing
enhancement where defendant was charged under both § 30.02(a)(1) and (3) and
the record contained no evidence indicating under which subsection he pleaded
guilty).
      Unlike Fambro, this is an appropriate case for this court definitively to
conclude that a burglary conviction under § 30.02(a)(3) of the Texas Penal Code
is not a generic burglary under the Taylor definition because it does not contain

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an element of intent to commit a felony, theft, or assault at the moment of entry.
Therefore, Constante’s burglary convictions are not violent felonies under 18
U.S.C. § 924(e).
      Because we conclude that Constante’s burglary convictions do not qualify
as violent felonies for purposes of a § 924(e) sentencing enhancement, we do not
need to reach the issue of whether the burglaries and the arson were committed
on different occasions from one another. Without the four burglary convictions,
Constante only has two prior convictions for violent felonies and is not subject
to the § 924(e) sentencing enhancement.
      Finally, Constante admits that his second issue on appeal—whether his
sentence was unconstitutionally enhanced based on facts not alleged in the
indictment, proved to a jury beyond a reasonable doubt, or admitted as part of
his guilty plea—is foreclosed by Almendarez-Torres v. United States, 

(1998). See also United States v. White, 

, 254 (5th Cir. 2006)
(“[N]either the statute nor the Constitution requires a jury finding on the
existence of the three previous felony convictions required for the [§ 924(e)]
enhancement.” (quoting United States v. Stone, 

, 243 (5th Cir.
2002))). This argument has been preserved for possible future review.
                             III. CONCLUSION
      For the reasons stated above, Constante’s sentence is VACATED and the
case is REMANDED for resentencing consistent with this opinion.




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