USA v. Rene Garcia

Filing

PUBLISHED OPINION FILED. [09-20587 Affirmed] Judge: RHB , Judge: CES , Judge: LHS. Mandate pull date is 11/17/2010 for Appellant Rene Martinez Garcia [09-20587]

USA v. Rene GarciaCase: 09-20587

Document: 00511276611 Page: 1 Date Filed: 10/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 27, 2010 N o . 09-20587 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. R E N E MARTINEZ GARCIA, also known as Jesus Renosa Geraldo, also k n o w n as Rene Martinez, also known as Rene Martinez-Garcia, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges. L E S L I E H. SOUTHWICK, Circuit Judge: T h is appeal solely concerns a sentence enhancement. The issue is whether t h e defendant's prior conviction under Georgia law was for a crime of violence. We conclude that it was and AFFIRM. I . Statement of Facts R e n e Martinez-Garcia pled guilty to illegal reentry into the United States a ft e r being deported following a conviction for an aggravated felony. The

P r e s e n t e n c e Report ("PSR") assigned a base offense level of eight. A 16-level e n h a n c e m e n t was applied due to a 2002 conviction for burglary in Georgia, w h ic h the PSR recommended be classified as a crime of violence. The PSR then

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No. 09-20587 r e d u c e d the offense level by three for acceptance of responsibility. A total offense le v e l of 21 combined with a criminal history category of V resulted in a S e n te n c in g Guidelines range of 70-87 months of imprisonment. M a r t in e z-G a rcia objected to the 16-level enhancement. He argued that the G e o r g ia offense of burglary did not constitute the Guidelines' enumerated o ffe n s e of burglary of a dwelling. The probation officer agreed and prepared an a d d e n d u m to the PSR that eliminated the enhancement. The district court overruled the objection, adopted the original PSR, a p p lie d the crime of violence enhancement, and entered a sentence within the G u id e lin e s range of 78 months of imprisonment. Martinez-Garcia appealed. I I . Discussion T h is court reviews "the district court's interpretation and application of t h e Sentencing Guidelines de novo." United States v. Murillo-Lopez, 444 F.3d 3 3 7 , 339 (5th Cir. 2006) (citation omitted). If this court finds error, it must d e t e r m in e whether the error was harmless. United States v. Lopez-Urbina, 434 F .3 d 750, 765 (5th Cir. 2005) (citation omitted). M artin ez-G a rcia argues the district court erred in holding that his Georgia c o n v ic t io n of burglary qualified as a "crime of violence." Further, the error could n o t be harmless because without the crime of violence enhancement, he would h a v e been subject to a lower Guidelines sentencing range. The substance of the argument now is the same as it was at sentencing, n a m e ly , that the Georgia offense of burglary does not qualify as the Guidelines' e n u m e r a t e d crime of violence of "burglary of a dwelling" because Georgia courts in t e r p r e t "dwelling" to include structures within the curtilage thereof. d is a g re e . We

As we explain, the term "dwelling" within the Georgia burglary

s t a t u t e comports with the ordinary, common meaning of that term, and does not n o w ­ though it once did ­ include structures within the curtilage.

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No. 09-20587 T h e Guidelines include "burglary of a dwelling" as a "crime of violence," b u t the crime is not defined. U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n .1 (B )(iii) (2010). Because Martinez-Garcia was convicted in Georgia of one of t h e offenses enumerated as a crime of violence that is not specifically defined in t h e Guidelines, we are to determine whether the Georgia crime is consistent w it h the "ordinary, contemporary, [and] common meaning" of burglary of a d w e llin g . Murillo-Lopez, 444 F.3d at 339 (quotation marks and citation omitted). We employ the categorical approach in determining whether the Georgia crime m a t c h e s the ordinary meaning. Id. at 342. T h e "`ordinary, contemporary, common meaning' of `burglary of a dwelling' d o e s not extend to the grounds around the dwelling," and demands an entry into o r remaining in the dwelling. United States v. Gomez-Guerra, 485 F.3d 301, 304 (5 t h Cir. 2007) (citation omitted). The commonly understood meaning of a d w e llin g is "a house or other structure in which a person lives." United States v . Mendoza-Sanchez, 456 F.3d 479, 482 (5th Cir. 2006) (quotation marks o m i t t e d ) . The dwelling "does not extend to the grounds around the dwelling," i.e ., the curtilage. Gomez-Guerra, 485 F.3d at 304. If a state burglary statute m a y be violated by entry only into the curtilage, a conviction under that statute is not a crime of violence. Id. at 303-04. T o identify the prior conviction's scope, we start with an examination of t h e statute. Id. at 303. The present Georgia burglary statute, in effect for M a r t in e z -G a r c ia 's 2002 conviction, states: A person commits the offense of burglary when, without authority a n d with the intent to commit a felony or theft therein, he enters or r e m a in s within [1] the dwelling house of another or [2] any building, v e h ic le , railroad car, watercraft, or other such structure designed for u s e as the dwelling of another or [3] enters or remains within any o t h e r building, railroad car, aircraft, or any room or any part th e r e o f. G a . Code Ann. § 16-7-1(a) (2007) (bracketed numbers added). 3

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No. 09-20587 W h e r e a statute is divisible, as it is here, we apply a "modified categorical a p p r o a c h " by examining certain adjudicative records. United States v. GonzalezT e r r a z a s , 529 F.3d 293, 297 (5th Cir. 2008). The record of conviction, which c o n t a in s the "Accusation," states Martinez-Garcia was charged with having " e n t e r e d the dwelling house of another" at a certain address. M a r t in e z -G a r c ia 's argument seeks to make two separate points. First, he a s s e r t s that a reference to a dwelling house in a charging instrument under G e o r g ia law historically has included structures within the curtilage of the d w e llin g . Second, he argues that despite a statutory change, the Georgia courts s t ill interpret the statute as they did under prior caselaw. I n the past, Georgia courts have interpreted "dwelling house" to include p a r tic u la r buildings within the curtilage. E.g., King v. State, 25 S.E. 613 (Ga. 1 8 9 6 ); Daniels v. State, 78 Ga. 98 (1886); Bryant v. State, 60 Ga. 358 (1878). These cases were decided under a prior statute, though, which explicitly stated t h a t "outhouses . . . within the curtilage . . . of the . . . dwelling house shall be c o n s id e r e d as parts of the same." Ga. Code Ann. § 4386 (1895). There are no r e fe r e n c e s to outhouses and curtilage in the current statute. N o n e t h e le s s , Martinez-Garcia insists that Georgia courts continue to in t e r p r e t the current burglary statute to include structures within the curtilage. T h is argument fails. As recently as 2008, a Georgia court has defined "dwelling h o u s e " under the present burglary statute as a "`residence or habitation of a p e r s o n other than the defendant, where such person makes his abode.'" Sanders v . State, 667 S.E.2d 396, 399 (Ga. Ct. App. 2008) (quoting Mash v. State, 82 S .E .2 d 881 (Ga. Ct. App. 1954)). The usual understanding of those words makes t h e Georgia definition consistent with the contemporary meaning. M a r t in e z -G a r c ia persists. He considers Sanders' citation to the pre-

a m en d m en t case of Mash to undermine the quoted definition of "dwelling house." Specifically, because Sanders quoted a definition from precedent interpreting the 4

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No. 09-20587 p r io r statute, Martinez-Garcia argues that the definition of "dwelling house" im p lic it ly included structures within its curtilage. Thus, when Sanders cited M a s h , it brought along the meaning of "dwelling house" that applied in 1954 w h e n Mash was decided. T h is argument, though ably made, is unreasonable. The Georgia court in S a n d e r s was addressing the difference between completed residences and those u n d e r construction, not outhouses compared to dwellings. Id. at 397-99.

Sanders found in Mash a source for the useful quote that a "dwelling house" was " a residence or habitation" used as an abode. Id. at 399. W e conclude that none of the Georgia opinions interpreting the current v e r s io n of the Georgia burglary statute has held that a "dwelling house" includes s t r u c t u r e s within the curtilage. The current statute has other provisions that a llo w for conviction if entry is into certain other buildings, but those structures a r e not "dwelling houses." T h e term "dwelling" within the Georgia burglary statute comports with the o r d in a r y , contemporary definition of that term. A c c o r d in g ly , the district court did not err in applying the 16-level crime of v io le n c e enhancement when sentencing Martinez-Garcia, as his prior conviction o f burglary under Georgia state law falls within the scope of the Guidelines o ffe n s e of "burglary of a dwelling." Because there was no error, we do not c o n s id e r Martinez-Garcia's argument as to whether the error was harmless. A F F IR M E D .

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