In United States of America v. Felix Uribe, No. 15-51223 (5th Cir., Oct. 3, 2016) (published), the question before the Fifth Circuit was whether a conviction for Texas burglary (Tex. Penal Code 30.02(a)) is a "crime of violence" under U.S. Sentencing Guidelines Section 2L1.2. The Court had previously held that it was in United States v. Murillo-Lopez, 444 F.3d 337 (5th Cir. 2006) (though the Court does not point out that case involved California burglary), but sought to determine whether the U.S. Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), changed that outcome of that decision. The Court held held that it did not.
The U.S. Sentencing Guidelines create a 16 level sentence enhancement to a illegal reentry conviction (18 U.S.C. 1326) for a prior conviction for a "crime of violence." U.S.S.G. 2L1.2(b)(1)(A)(ii). The phrase "crime of violence" in this context is further defined in the U.S.S.G. commentaries as including "burglary of a dwelling." The question, therefore, is whether Uribe's burglary conviction was categorically a "burglary of a dwelling" after Mathis. The Court cited its precedent holding that a generic "burglary of a dwelling" comprises "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." The Court then looked to state law to determine that Texas Penal Code 30.02(a) is "divisible" because paragraphs 1, 2, and 3 are "elements" that must be separately proved. Presumably, this means that if part of a Texas jury believed that the defendant entered a habitation with the intent to commit a crime, and part of the jury believed he merely remained concealed with intent to commit a crime, the conviction would not stand up on appeal. 1, 2, and 3 are "separate crimes" under Descamps. Therefore, the Court held, the statute was divisible, and the modified categorical approach was applicable. Therefore, the Court examined his confession which indicated that he "entered the victim's habitation with the intent to commit felony theft." Therefore, the Court determined, he had been convicted of a burglary of a dwelling, and the enhanced sentence should be upheld.
Commentary: The opinion seems to reach the right result for the right reason but is poorly explained. The problem with Texas Penal Code 30.02 is paragraph 3 which allows for conviction of a burglary if a person "enters a building or habitation and commits or attempts to commit a felony, theft, or an assault." In other words, no pre-entry intent to commit a crime is required, as under the generic definition. Therefore, if in Texas, part of a jury believed that the defendant entered a building with the intent to commit a felony, theft, or assault, and part of the jury believed the defendant entered without that intent but subsequently attempted to commit the crime, the conviction would presumably not be upheld. The jury must unanimously agree whether the defendant did 1, 2, or 3. In any case, this is the conclusion that the Court must necessarily derive from its citations to Texas case law. If the Court is right that 1, 2, and 3 must be individually proven and are not simply means of committing burglary, then its conclusion that the statute is divisible is correct and its examination of the defendant's confession under the modified categorical approach was appropriate. Therefore, 30.02 would be a divisible statute and the sentence enhancement was correct.