PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4778

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERTO MORENO PENA, a/k/a Alberto Zapata Sierra,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:16-cr-00865-PMD-1)

Argued: December 10, 2019 Decided: March 11, 2020 Amended: March 11, 2020

Before DIAZ and QUATTLEBAUM, Circuit Judges, and Max O. COGBURN, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed in part, vacated and remanded in part by published opinion. Judge Quattlebaum wrote the opinion in which Judge Diaz and Judge Cogburn joined.

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Marshall Taylor Austin, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. QUATTLEBAUM, Circuit Judge:

Roberto Moreno Pena (“Pena”) was sentenced to 24 months in prison for illegally

reentering the United States subsequent to conviction for an aggravated felony, in violation

of

(a) and (b)(2). In appealing that sentence, he raises two primary issues.

First, Pena appeals the classification of a 1989 Texas burglary conviction as an aggravated

felony for purposes of

(b), which sets out penalties for aliens who have

reentered the United States after removal subsequent to conviction for certain crimes.

Second, Pena appeals the district court’s use of the Sentencing Guidelines in effect at the

time of his sentencing because he contends they are more punitive than the version in effect

at the time he committed the offense. For the reasons set forth below, we affirm in part,

and we vacate and remand in part for resentencing consistent with this opinion.

I.

We begin with a review of

, the statute under which Pena was

charged, pled guilty and was sentenced. Title

prohibits the unauthorized

reentry of an alien who has been previously deported from the United States. As a general

matter,

(a) imposes a fine and/or imprisonment for up to two years for an

alien who has illegally reentered the country. But that sentence can be increased based on

the alien’s prior criminal conduct in the United States. Subsection (b)(1) imposes a fine

and/or imprisonment for not more than 10 years for an alien “whose removal was

subsequent to a conviction for commission of three or more misdemeanors involving drugs,

crimes against the person, or both, or a felony (other than an aggravated felony ).” 8 U.S.C.

2 § 1326 (b)(1). Subsection (b)(2) imposes a fine and/or imprisonment for not more than 20

years for an alien “whose removal was subsequent to a conviction for commission of an

aggravated felony.”

(b)(2). 1

II.

Against that backdrop, we turn to the facts relevant to this appeal. In 1990, Pena

was removed from the United States to Mexico, following a 1989 Texas conviction for

burglary of a habitation. After he again reentered the country illegally, he was convicted of

possession of heroin. That led to a second removal in 2002. Pena returned illegally for the

third time and was later arrested for driving without a license and under the influence.

Following that arrest, Pena was charged with illegal reentry after deportation subsequent

to a conviction for an aggravated felony, in violation of

(a) and (b)(2). The

indictment charged that Pena unlawfully entered and was found in the United States

without express consent of the proper authorities. The sentence associated with this offense

is at issue here.

While represented by counsel, Pena pled guilty. During his plea hearing, the district

court informed Pena that one of the elements of the offense was a previous conviction of

an “aggravated felony,” which was satisfied by his 1989 Texas burglary conviction. The

district court accepted his guilty plea.

1 A defendant who commits an offense under

triggers the sentencing guidelines at U.S.S.G. § 2L1.2(b), which provides sentencing enhancements for certain aggravating factors. 3 Subsequently, the United States Probation Office prepared a Presentence Report

(“PSR”) that calculated Pena’s offense level under the 2015 United States Sentencing

Guidelines (“U.S.S.G.”) Manual, the manual in effect when Pena committed the offense.

Based on the 2015 Manual, the Probation Office recommended a base offense of 8 with a

4-level increase for a felony conviction under U.S.S.G. § 2L1.2(b)(1)(D). 2 After other

adjustments, the Probation Office recommended a total offense level of 10 which, with

Pena’s criminal history category of III, resulted in an advisory range of 10 to 16 months’

imprisonment.

Pena objected to the PSR, arguing the 1989 Texas burglary conviction was not an

aggravated felony. He also filed a Motion to Strike Surplusage or in the Alternative to

Withdraw Plea, claiming that he had not been convicted of an “aggravated felony.”

Just prior to sentencing, the Probation Office issued a new PSR using the 2016

Guidelines Manual, the manual in effect at the time of sentencing, rather than the 2015

Guidelines used for the first PSR. In the new PSR, the Probation Office recommended a

base offense level of 8, with a 10-level increase under U.S.S.G. § 2L 1.2 (b)(3)(A) because

Pena engaged in criminal conduct that resulted in a felony after he was ordered to be

deported from the United States for the first time. These calculations, after other

adjustments for acceptance of responsibility, led to a total offense level of 15, a criminal

history category of III and an advisory guidelines imprisonment range of 24 to 30 months.

2 The initial PSR does not appear to apply the crime of violence enhancement relative to Pena’s 1989 burglary conviction, which, if applied, could have increased the offense level by at least 12 points. 4 At sentencing, Pena, still represented by counsel, objected to the new PSR. Relevant

to this appeal, he argued that the 1989 Texas burglary did not qualify as an aggravated

felony. Therefore, Pena argued he should not be subjected to the enhanced penalties

of § 1326(b)(2). He also argued that the 2015 Guidelines Manual should be used to

evaluate the sentence because it was less punitive than the 2016 Guidelines Manual.

The district court overruled Pena’s objection that Texas burglary did not qualify as

an aggravated felony. In making this determination, the district court applied the “modified

categorical approach.” Using that approach, the court found Texas burglary qualified as

both a theft offense and a burglary offense under

(a)(43)(G), which are

potential forms of an aggravated felony under the Immigration and Nationality Act

(“INA”). Having identified an aggravated felony under

(a) of the INA, the

district court proceeded with sentencing in light of

, which once again sets

forth the penalties for aliens who reenter the United States after removal subsequent to a

conviction of certain crimes.

The district court stated: “I would end up giving the same sentence under either of

the statutory schemes.” J.A. 49. It then adopted the calculations under the 2016 Guidelines

Manual, which, as described above, yielded a range of imprisonment of 24–30 months. The

district court sentenced Pena to 24 months, indicating that but for Pena’s counsel’s

argument for a downward departure, presumably regarding his lengthy sentence for

possession of a controlled substance, it would have sentenced him to 30 months.

After judgment was entered, Pena timely filed his Notice of Appeal on December

15, 2017.

5 III.

Before addressing Pena’s arguments on appeal, we note our standard of review.

Whether a crime is an aggravated felony is a question of law this Court reviews de novo.

Castendet-Lewis v. Sessions,

(4th Cir. 2017). In evaluating whether the

district court properly applied the advisory sentencing guidelines, we review the district

court’s factual findings for clear error and its legal conclusions de novo. United States v.

Layton,

(4th Cir. 2009). We review a sentence imposed by a district

court for reasonableness, considering both procedural and substantive components. See

Gall v. United States,

(2007); United States v. Abu Ali,

(4th Cir. 2008). Our jurisdiction to review is authorized by

and

.

IV.

With those standards in mind, we turn to Pena’s arguments on appeal. Pena first

argues that his 1989 conviction for Texas burglary did not qualify as an aggravated felony.

The INA, at

(a)(43), lists twenty-one categories of criminal conduct that

qualify as an “aggravated felony.” Two of the categories pertinent here are found in

subsections (F) and (G). Subsection (F) refers to “a crime of violence (as defined in section

16 of Title 18, but not including a purely political offense) for which the term of

imprisonment [is] at least one year.”

(a)(43)(F). Subsection (G) refers to

“a theft offense (including receipt of stolen property) or burglary offense for which the

term of imprisonment [is] at least one year.”

(a)(43)(G).

6 Originally, the government argued that Texas burglary qualified as an aggravated

felony under the federal criminal code’s definition of crime of violence as defined at

(b), which is known as the residual clause. However, Sessions v. Dimaya,

(2018), issued after the government’s original argument, held that the

residual clause of § 16(b) as incorporated into the INA’s definition of “aggravated felony”

was unconstitutionally vague. In response, the government shifted its position. It now

argues the Texas burglary statute constitutes a theft or burglary offense under

(a)(43)(G). 3 But Pena challenges this position as well, claiming Texas

burglary does not qualify as a theft offense or burglary offense.

In evaluating Pena’s argument, we must first determine the proper framework for

our analysis. More specifically, we must decide whether to employ the “categorical

approach” or the “modified categorical approach” in our analysis. Then, once we make that

determination, we must apply the proper framework to consider whether Texas burglary

qualifies as a burglary offense for purposes of the INA.

A.

We begin with the question of whether we are to apply the categorical approach or

the modified categorical approach in resolving this appeal. Under the categorical approach,

we focus not on the actual facts involved in the 1989 case. Moncrieffe v. Holder,

It also contends Pena’s conduct constituted an attempted aggravated felony under

(a)(43)(U), although that is not relevant to the issues we consider today.

7 184, 190 (2013). 4 Instead, we examine whether the elements of the crime of conviction

(here Texas burglary) sufficiently match the elements of a listed offense (here “burglary,”

in a generic sense). Gonzales v. Duenas-Alvarez,

, 185–86 (2007). And when

we refer to “elements,” we mean the “constituent parts of a crime’s legal definition” that

must be proven by the prosecution beyond a reasonable doubt to sustain a conviction.

Mathis v. United States,

(2016) (internal citation and quotation marks

omitted).

Under this approach, Texas burglary qualifies as generic burglary, and thus an

aggravated felony, if its elements are the same as, or narrower than the elements of generic

burglary. See

If Texas burglary, however, covers more conduct, or is broader than

generic burglary, then it does not match and thus will not qualify as an aggravated felony

predicate offense. This is so regardless of whether the defendant’s actual conduct factually

fits within the parameters of the generic offense.

4 As we again consider the Alice in Wonderland path known as the categorical approach, see United States v. Battle,

, 164 n.2 (4th Cir. 2019), we note that it is not a default rule of statutory construction. We apply it, as we held in United States v. Simms,

(4th Cir. 2019), when compelled to do so by the text of the applicable statute. When the text of a statute, on the other hand, refers expressly or implicitly to conduct, the circumstance-specific approach applies. See Nijhawan v. Holder,

(2009) (applying the “circumstance-specific approach” to

(a)(43)(M)(i) of the INA); United States v. Price,

(4th Cir. 2015) (applying the “circumstance-specific approach” in deciding that the defendant was subject to the registration requirement under the Sex Offender Registration and Notification Act (“SORNA”)). 8 This categorical analysis is more straightforward where a statute sets forth a single,

or “indivisible,” set of elements to define a single crime. A court compares the elements of

the statute of conviction and the elements of the generic offense to see if they match.

But some statutes have a divisible structure in that a single statute may list

alternative sets of elements, thereby setting out several crimes within a single statute.

Mathis,

. In this situation, the sentencing court must determine which of

the alternative elements formed the crime for which the defendant was convicted.

To

do this, the sentencing court looks to a limited class of documents such as an indictment,

jury instructions or a plea colloquy to determine the crime of conviction, and then compares

that crime with the relevant generic offense. Id.; see also Shepard v. United States,

(2005); United States v. Covington,

(4th Cir. 2018). This

analysis is called the modified categorical approach.

Determining whether a statute is indivisible, in which case the categorical approach

is applied, or divisible, in which case the modified categorical approach is applied, requires

a careful review of the pertinent statute. If the statute contains a list of “diverse means of

satisfying a single element of a single crime” or “spells out various factual ways of

committing some component of the offense” it lists the various means of committing a

single offense and is thus is indivisible. Mathis,

. On the other hand, if

the statute sets out potential offense elements in the alternative, it in effect lists “several

different crimes,” and is thus divisible. Omargharib v. Holder,

, 197–98 (4th

Cir. 2014).

9 The district court concluded the Texas statute at issue in Pena’s 1989 burglary

conviction involved potential offense elements in the alternative and was thus divisible.

Accordingly, it applied the modified categorical approach. Pena challenges this conclusion,

claiming the Texas statute contained a list of means of carrying out a single offense and

was thus indivisible, requiring application of the categorical approach.

Recently, the Fifth Circuit, in United States v. Herrold,

(5th Cir. 2018)

(en banc) (“Herrold I”), addressed the question of whether the Texas burglary statute was

divisible or indivisible. In an en banc decision, it held that Texas Penal Code § 30.02(a)(1)

and (3) are not distinct offenses, but instead separate means of committing one burglary

offense. Herrold I,

. After canvassing several state court cases, the Fifth

Circuit concluded that “Texas courts have repeatedly held that a jury need not unanimously

agree on whether Texas Penal Code § 30.02(a)(1) or (a)(3) applies in order to sustain a

conviction for burglary.” 5 Id. at 523. Thus, “[u]nder Mathis, when state law does not

require jury unanimity between statutory alternatives, the alternatives cannot be divisible.”

Id. As a result, in Herrold I, the Fifth Circuit concluded that the categorical approach was

the proper framework for analyzing Texas Penal Code § 30.02(a), and in United States v.

Herrold,

(5th Cir. 2019) (en banc) (“Herrold II”), it reinstated that

5 For example, in Martinez v. State, the Court of Appeals of Texas addressed the question of whether subsections (a)(1) and (a)(3) of section 30.02 establish separate criminal offenses. After a detailed analysis, the court concluded that the statute did not, noting that the subsections are essentially alternative means for proving a single mens rea element without causing an affront to the jury unanimity requirement. Martinez v. State,

(Tex. App. 2008).

10 portion of its decision upon remand from the Supreme Court. We find Herrold I, as

reinstated by Herrold II, instructive as it relates to the question of whether the Texas

burglary statute is indivisible and agree with Pena that the district court erred in applying

the modified categorical approach. 6 Instead, the proper analytical framework is the

categorical approach.

B.

Having determined that the categorical approach is the proper analytical framework,

we turn to the question of whether Texas burglary is a match with and therefore qualifies

as a burglary offense under the INA. We begin with the text of both. Under the 1989 Texas

Burglary statute, § 30.02 (a), a person commits an offense if, without the effective consent

of the owner, he:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or

(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a felony or theft.

6 We do not find this conclusion to be in conflict with our decision in United States v. Bonilla,

(4th Cir. 2012), where this Court considered a sentencing enhancement based on a Texas burglary conviction and concluded that a conviction under Texas Penal Code § 30.02(a)(3) substantially corresponds to the elements of generic burglary under Taylor v. United States,

(1990) and therefore qualifies as a crime of violence. Bonilla,

. From a divisibility perspective, that case appears to embrace the use of the modified categorical approach in a footnote, but it was decided prior to Descamps v. United States,

(2013) and Mathis, which require courts to assess the divisibility of a statute before proceeding to apply a modified categorical approach. Those cases make clear that the modified approach serves a limited function—merely effecting the application of the categorical analysis. Descamps,

. 11 Tex. Penal Code § 30.02.

Next, we turn to the INA, which does not define “burglary offense.” But in

determining whether a conviction falls with the scope of a listed offense, we refer to the

generic definition of burglary in Taylor v. United States,

(1990). See

Gonzales, 549 U.S. at 185–86 (applying the categorical approach of Taylor to the INA).

Under Taylor, burglary means the “unlawful or unprivileged entry into, or remaining in, a

building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 598–99.

Two recent Supreme Court cases addressing the scope of generic burglary inform

our comparison of generic burglary with burglary under the Texas statute. In Quarles v.

United States,

(2019), the Court concluded that “remaining-in burglary . . .

when the defendant forms the intent to commit a crime at any time while unlawfully

remaining in a building or structure” falls within generic burglary.

(emphasis

in original). Then, in United States v. Stitt,

(2018), the Supreme Court

concluded generic burglary includes “vehicles designed or adapted for overnight use.” Stitt,

. “An offender who breaks into a mobile home, an RV, a camping tent, a

vehicle, or another structure that is adapted for or customarily used for lodging runs a

similar or greater risk of violent confrontation.”

. These two decisions effectively

eliminated arguments that Texas Penal Code § 30.02(a)(3) was more broad than generic

burglary. Thus, the Fifth Circuit in Herrold II held that the Texas burglary statute fell

within the generic definition of burglary.

12 Similarly, we conclude that Texas burglary qualifies as generic burglary as defined

in Taylor. 7 Quarles forecloses any argument that the Texas burglary statute is overbroad

to the extent Pena argues it encompasses circumstances where a defendant develops the

intent to commit a crime after an initial entry or initial decision to remain without

authorization. And Stitt undercuts any argument that the statute is overbroad in that it

includes vehicles as part of the definition of “habitation” under Texas law, a term included

in all three subsections of the statute as a locational aspect of the offense. 8 As the Supreme

Court stated in Taylor and reiterated in Quarles, all that is necessary is that the state statute

“substantially corresponds to or is narrower than generic burglary.” Quarles,

. We find that the relevant Texas burglary statute does so here. Thus, although we

apply the categorical approach rather than the modified categorical approach, we affirm

the district court in finding that Texas burglary is a burglary offense under

(a)(43)(G) and is thus an “aggravated felony” under the INA. Having so

found, we need not reach the government’s remaining arguments as to whether the Texas

7 Herrold I and II considered the 2017 version of Texas Penal Code § 30.02(a), which is slightly different from the 1989 version at issue for purposes of Pena’s case. The 2017 version references a “felony, theft, or an assault,” where the 1989 version references only a “felony or theft.” The existence of the additional “assault” language does not change the result for purposes of this analysis. 8 Under Texas state law, the term “habitation” “means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle; and (B) each structure appurtenant to or connected with the structure or vehicle.” Tex. Penal Code § 30.01 (1990); see also Andrus v. State,

(Tex. App. 2016). 13 burglary statute constitutes a theft or attempted theft offense under

(a)(43)(G) or (U).

At oral argument, realizing Dimaya, Quarles, Stitt and Herrold I and II had

significantly altered the legal landscape of this case, Pena raised a new argument for the

first time. Pena argued that Texas Penal Code § 30.02(a)(3) is broader than the generic

definition of burglary because the generic definition requires a specific intent to commit a

crime that accompanies the entry whereas § 30.02(a)(3) of the Texas burglary statute does

not. Although an interesting argument, this Court, absent some exceptions not applicable

here, will not consider arguments not made in the briefs, but raised instead for the first time

at oral argument. See Robinson v. Wix Filtration Corp. LLC,

, 410 n.9 (4th

Cir. 2010). Therefore, we decline to consider this argument.

V.

In addition to his argument about whether his Texas burglary conviction qualifies

as an aggravated felony, Pena claims the district court committed a procedural error in

applying the 2016 Guidelines Manual at sentencing. Pena claims the 2015 Guidelines

should have been applied because they are less punitive than the 2016 Guidelines. 9

9 Although the Sentencing Guidelines are advisory, district courts must apply the Sentencing Guidelines in effect on the date the defendant is sentenced unless the court determines that doing so would violate the Ex Post Facto Clause of the United States Constitution. Peugh v. United States,

, 537–38 (2013); U.S.S.G. § 1B1.11(a), (b)(1) (2016); United States v. Lewis,

, 198–99 (4th Cir. 2010) (concluding that “the retroactive application of severity enhancing Guidelines amendments contravenes the Ex Post Facto Clause”). “[A]pplying amended sentencing guidelines that increase a

14 We normally review a criminal sentence for abuse of discretion. Gall,

. In doing so, we first must examine whether the district court committed a significant

procedural error, such as improperly calculating the guideline range, treating the

Guidelines as mandatory, failing to consider the

(a) factors or failing to

adequately explain its chosen sentence. United States v. Carter,

(4th Cir.

2009). “In assessing whether a district court properly calculated the Guidelines range,

including its application of any sentencing enhancements, this Court reviews the district

court’s legal conclusions de novo and its factual findings for clear error.” United States v.

Horton,

(4th Cir. 2012) (internal quotation marks and alteration

omitted). We then consider the substantive reasonableness of the sentence imposed in view

of the totality of the circumstances. Gall,

; United States v. Savillon-Matute,

(4th Cir. 2011). “Federal sentencing law requires the district judge in

every case to impose ‘a sentence sufficient, but not greater than necessary, to comply with’

the purposes of federal sentencing, in light of the Guidelines and other § 3553(a)

factors.” Freeman v. United States,

(2011) (quoting

(a)).

But we need not conduct this analysis here because, at oral argument, the

government conceded that the 2015 Guidelines applied. Despite that concession, however,

the government maintains the district court’s failure to apply that Guidelines Manual was

defendant’s recommended sentence can violate the Ex Post Facto Clause, notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range.” Peugh v. United States,

. Pena claims the 2016 Guidelines are more punitive and thus applying them violates the Ex Post Facto Clause. 15 a harmless error. Although we are not bound by the government’s concession of

error, United States v. Boulware,

(4th Cir. 2010), we see no reason not

to proceed to the harmless error analysis.

In order to prevail on harmlessness, the government must show that an error did not

affect a defendant’s “substantial rights.” United States v. Robinson,

(4th

Cir. 2006). A sentencing error is harmless “if the resulting sentence was not longer than

that to which [the defendant] would otherwise be subject.” United States v. Mehta,

(4th Cir. 2010) (internal citation and quotation marks omitted). One way that

occurs is where “the record makes clear that the District Court would have imposed the

same sentence under the older, more lenient Guidelines that it imposed under the newer,

more punitive ones.” Peugh v. United States,

.

Here, the government relies on the district court’s statements at sentencing to

support its argument that the erroneous use of the 2016 Guidelines was harmless. The

district court indicated, “as to the statutory penalty being greater under one and lesser under

the other, given the guideline ranges that he’s in, that’s not going to affect the Court’s view.

I would end up giving the same sentence under either of the statutory schemes.” J.A. 49.

Based on that statement, the government contends, Pena would have received the same

sentence under either the 2015 or the 2016 Guidelines.

But the statement from the district court does not appear to be related to the question

of whether the 2015 or the 2016 Guidelines apply. Instead, it appears to indicate that

whether Pena’s prior criminal conduct fell within subsection (b)(1) or subsection (b)(2) of

did not affect the court’s view of an appropriate sentence in light of the

16 guideline ranges under the 2016 Manual. The district court did not indicate that the

sentence it chose was appropriate regardless of whether the 2015 or the 2016 Manual was

consulted to calculate that advisory guideline range.

Further, the differences in the portions of the 2015 and 2016 Guidelines relevant

here are significant. As set forth above, the district court imposed a within-guideline

sentence of 24 months under the 2016 Manual. To impose the same sentence using the

2015 Manual, the district court would have had to either increase the offense level by

applying additional enhancements or impose an upward variance. Perhaps the district court

would have done so. Indeed, there may be cases in which the record clearly shows that the

district court would have imposed the same sentence under either Guidelines Manual, and

that the sentence would have been reasonable either way. But that is not apparent to us

from this record. See Savillon-Matute,

(affirming a sentence based on an

“assumed error harmlessness inquiry”). Thus, this error was not harmless.

VI.

Based on the foregoing, we affirm the district court’s conclusion that Pena’s Texas

burglary conviction is properly classified as an aggravated felony for purposes

of

(b)(1)–(2). But we vacate and remand this matter in part for resentencing

under the appropriate sentencing guidelines consistent with this opinion.

AFFIRMED IN PART, VACATED AND REMANDED IN PART

17