IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40007

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

CARLOS JUAREZ-MARTINEZ, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:15-CR-660-1

Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Carlos Juarez-Martinez pleaded guilty to being 

unlawfully in the United States following a prior deportation, in violation of

8 U.S.C. § 1326. The presentence report (PSR) recommended a 16-level 

sentencing enhancement based on Juarez-Martinez’s 2011 Georgia conviction 

for burglary, deeming it a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 22, 2018

Lyle W. Cayce

Clerk

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(2015). At the sentencing hearing, the district court imposed a withinGuidelines sentence of 70 months of imprisonment. 

Juarez-Martinez appeals, arguing that the district court improperly 

enhanced his sentence based on this burglary conviction, an argument he 

concedes he did not raise below. In light of this forfeiture, we review this issue 

for plain error only. See United States v. Hernandez, 690 F.3d 613, 620 (5th 

Cir. 2012). To establish plain error, Juarez-Martinez must show: (1) an error 

or defect, (2) that is clear or obvious, and (3) affected his substantial rights.

United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) 

(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). If these three 

elements are satisfied, this court has the discretion to remedy the error “if the 

error seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” Id. (quoting Puckett, 556 U.S. at 135).

Under the applicable 2015 version of the Guidelines, a defendant is 

subject to a sentencing enhancement under § 2L1.2(b)(1)(A)(ii) if he was 

previously deported after a felony conviction for a “crime of violence” that 

receives criminal history points. As relevant here, this definition of “crime of 

violence” includes certain enumerated offenses, including “burglary of a 

dwelling.” See § 2L1.2(b)(1)(A)(ii) cmt. n.1. We have defined “burglary of a 

dwelling” as “generic” burglary, i.e., the “unlawful or unprivileged entry into, 

or remaining in, a building or other structure, with intent to commit a crime.” 

United States v. Murillo-Lopez, 444 F.3d 337, 341, 344–45 (5th Cir. 2006) 

(citing Taylor v. United States, 495 U.S. 575, 598 (1990)). 

Juarez-Martinez contends that the Georgia statute governing his 2011

burglary conviction is broader than this generic definition of burglary and 

therefore is not a crime of violence for purposes of § 2L1.2. Though we have 

previously held otherwise, see United States v. Martinez-Garcia, 625 F.3d 196 

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(5th Cir. 2010), our intervening en banc decision in United States v. Herrold, 

883 F.3d 517, 536 (5th Cir. 2018), makes it clear that our previous holding that 

the Georgia burglary statute is a crime of violence does not control our decision.

The relevant Georgia statute reads: “A person commits the offense of 

burglary when, without authority and with the intent to commit a felony or 

theft therein, he enters or remains within the dwelling house of another.” 

GA. CODE ANN. § 16-7-1 (2010). Juarez-Martinez contends that, under 

Georgia law, a jury is not required to determine whether the intent to commit 

a crime arose before an unlawful entry or remaining in as opposed to after one 

has already unlawfully remained in the dwelling. See, e.g., Jackson v. State, 

270 Ga. 494, 496 (1999) (“intent necessary for commission of burglary need not 

be formed at precise moment of entry, but can be formed while perpetrator 

remains on premises” (citing Hewatt v. State, 455 S.E.2d 104, 106 (Ga. Ct. App. 

1995)) (emphasis added)); Littleton v. State, 485 S.E.2d 230, 232 (Ga. Ct. App. 

1997) (“[T]he jury was authorized to determine that at some point before he 

entered the house or while he remained in it, [the defendant] intended to 

commit aggravated assault.” (emphasis added)); see also United States v. 

Bernel-Aveja, 844 F.3d 206, 235 & n.124 (5th Cir. 2016) (Owen, J., concurring) 

(citing Williams v. State, 601 S.E.2d 833, 836 (Ga. Ct. App. 2004), for the 

proposition that GA. CODE ANN. § 16-7-1 does not require a jury to determine 

whether a defendant forms intent prior to unlawfully entering or remaining

in). Accordingly, Juarez-Martinez argues that the Georgia statute is 

indivisible as to the issue of when the defendant forms the intent to commit a 

felony. See Herrold, 883 F.3d at 523 (“Under Mathis [v. United States, 136 S. 

Ct. 2243 (2016)], when state law does not require jury unanimity between 

statutory alternatives, the alternatives cannot be divisible.”). The Government 

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does not dispute this interpretation of Georgia law.1 In light of the 

Government’s implicit concession, we need not decide whether the cases cited 

by Juarez-Martinez provide the best or only interpretation of Georgia law, but 

we do accept this interpretation for the purposes of this 

appeal. See, e.g., FTC v. Nat’l Bus. Consultants, Inc., 376 F.3d 317, 320 n.6 

(5th Cir. 2004); United States v. McKeever, 894 F.2d 712, 714 n.1 (5th Cir. 

1990). 

This court, sitting en banc, recently affirmed that generic burglary 

requires that defendants “possess the intent to commit a crime while 

remaining in this narrower sense—that is, at the moment they exceed their 

license in order to commit the crime.” Herrold, 883 F.3d at 532; accord BernelAveja, 844 F.3d at 213–14; United States v. Herrera-Montes, 490 F.3d 390, 392 

(5th Cir. 2007). Under Juarez-Martinez’s proffered interpretation, which we 

accept for purposes of this appeal, Georgia burglary is therefore broader than 

generic burglary inasmuch as the jury is free to decide that intent was formed 

after, rather than contemporaneously with, an unlawful entry or remainingin. To the extent the holding of Martinez-Garcia encompasses a contrary view, 

it would be abrogated by Herrold.2 

Moreover, while the error may not have been plain when this matter was 

before the district court, “whether a legal question was settled or unsettled at 

 

1 The Government contends that Herrold was wrongly decided, which, of course, is 

unavailing: we are bound by our en banc precedent. The Government also discusses an 

Eleventh Circuit opinion holding that Georgia’s burglary statute is divisible as to its 

locational element. See United States v. Gundy, 842 F.3d 1156, 1168–69 (11th Cir. 2016). 

However, the Eleventh Circuit in Gundy did not consider Juarez-Martinez’s argument that 

the statute is indivisible as to when one forms the intent to commit a felony. Therefore, its 

holding has no bearing on our decision.

2 We have yet to definitively decide whether, pursuant to our rule of orderliness, a 

panel is bound by a prior panel’s holding if the prior panel did not consider or address a 

potentially dispositive argument made before the later panel. See United States v. Castillo-

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the time of [sentencing], it is enough that an error be ‘plain’ at the time of 

appellate consideration.” Henderson v. United States, 568 U.S. 266, 279 (2013)

(cleaned up). One need not carefully parse the Georgia cases discussed above 

to determine that, under Herrold, the Georgia burglary statute is indivisible 

as to when the intent to commit a felony is formed and broader than generic 

burglary. Thus, the enhancement is plainly erroneous.

Juarez-Martinez contends, and the Government does not dispute, that 

without the enhancement for his prior Georgia burglary conviction his

Guidelines range would have been, “at most,” 30–37 months of imprisonment. 

Instead, the district court imposed a sentence of 70 months of imprisonment, 

at the bottom of the now plainly erroneous Guidelines range. Accordingly, 

Juarez-Martinez has shown an effect on his substantial rights. See, e.g.,

United States v. Marroquin, 884 F.3d 298, 301 (5th Cir. 2018) (“When ‘a 

defendant is sentenced under an incorrect Guidelines range,’ the error will 

usually result in prejudice to the defendant.” (quoting Molina-Martinez v. 

United States, 136 S. Ct. 1338, 1345 (2016))). And this significant disparity

between the correct range and the incorrect sentence, combined with the 

absence of any countervailing considerations, supports the exercise of our 

 

Rivera, 853 F.3d 218 221 n.1 (5th Cir. 2017) (en banc) (declining to address “the proper 

application of this circuit’s rule of orderliness in cases where a party made an explicit 

concession before a prior panel that is dispositive in a future case”). Thus, it is not clear 

whether Martinez-Garcia, which did not address the breadth or divisibility of the element at 

issue here, 625 F.3d at 198–99, actually contains a holding that may conflict with Herrold. 

Compare, e.g., Sykes v. Tex. Air Corp., 834 F.2d 488, 492 (5th Cir. 1987) (“The fact that [in a 

prior case] no litigant made and no judge considered the fancy argument advanced in this 

case does not authorize us to disregard our Court’s strong rule that we cannot overrule the 

prior decision.”), with, e.g., Thomas v. Tex. Dep’t of Criminal Justice, 297 F.3d 361, 370 n.11 

(5th Cir. 2002) (“Where an opinion fails to address a question squarely, we will not treat it as 

binding precedent.”). 

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discretion to correct the error. See Rosales-Mireles v. United States, No. 16-

9493, 2018 WL 3013806, at *4 (U.S. June 18, 2018).

Because the district court’s sentencing error was plain, affected JuarezMartinez’s substantial rights, and seriously affects the fairness, integrity or 

public reputation of judicial proceedings, we exercise our discretion to 

REVERSE and REMAND for resentencing.

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