### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-40863

UNITED STATES OF AMERICA Plaintiff-Appellee
v. RUBEN JOSLIN Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2-11-CR-181-1

Before REAVLEY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Ruben Benito Joslin pleaded guil ty t o b eing a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was found eligible for sentencing enhancement under 18 U. S

. C

. § 924(e), the Armed Career Criminal Act (“A C CA”) , and sentenced to the statutory minimum of fifteen years of imprisonment and five years of supervised relea s e . O n ap p e al , Jo s lin alleges that the district court erred in finding three predicate convictions of “violent felonies” necessary to satisfy § 924(e). We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 14, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-40863 Document: 00511956335 Page: 1 Date Filed: 08/14/2012No. 11-40863 FACTS AND PROCEEDINGS The facts are largely undisputed. On April 25, 2011, Joslin pleaded guilty to one count of bei n g a f e l o n i n possession of a firearm. At sentencing, the district court, concerned that it h a d n o t properly admonished Joslin about the possible statutory enhancements under the ACCA, vacated the plea and ordered

a new hearing. Joslin again pleaded guilty to the offense. In the Pre-sentence Investigation Report (PSR), the probati o n officer determined that Joslin qualified for sentence enhan c ement due to his prior criminal history. After a three-level reduction for acceptance of responsibility, the district court reduced his offense level to a 30, which produced a guidelines range of 135 to 168 months of imprisonment. However, the PSR recommended that the court apply the fift e e n y e ar minimum sentence required under the ACCA, because Joslin previously had been convicted of four “violent felonies” including: (1) a 1992 conviction for burglary of a habitation with inte n t t o commit theft; (2) a 1997 conviction for burglary of a building; (3) a 1997 Texas deferred adjudication for burglary of a building; and (4) a 2000 conviction for aggravated assault. Joslin filed objections to the PSR contending that he did not qualify for the ACCA enhancement because two of the predicate offenses, namely, the 1992 and 2000 convictions, were not “violent felonies” under the statute. In regard to the 1992 conviction for burglary of a habitation, Joslin objected on the grounds that the Texas Pen al C ode § 30.02 (1991) did not conform to the “generic” or “contemporary” definition necessary to satisfy the ACCA. He a r gu e d that, because Texas law includes a unique definition of ownership based on a greater right of possession, the offense included broader activity than was intended for ACCA enhancement. Referring to the 2000 convi c t i o n for aggravated assault, Joslin contested that the offense was not a predicate “violent felony” under the ACCA because it lacked the following requisite elements: (i) the use of physical force against another person; (ii) a mens rea greater than recklessness ; o r (iii)

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conduct that presented a serious risk of physical injury. Joslin did not object to the application of the ACCA based on either the 1997 conviction for burglary of a building or the 1997 deferred adjudication for burglary of a building. The government conceded Joslin’s argument rega r di n g the 2000 conviction, and the court overruled Joslin’s objection that the 1992 conviction did not serve as a predicate offense for purposes of § 924(e). As a result, the district court determined that Joslin did have the three necessary predicate offenses and applied the ACCA declaring, “[t]he court adopts the p resentence report as

w ri t t e n . . . . The Defendant is sentenced to a hundred and eighty months.

. . . that is a minimum mandatory sentence about which the court has no discretion to sentence less than a hundred and eighty months.” DISCUSSION The ACCA provides that any person who violates § 922(g) and has three prior convictions “for a violent felony or serious drug offense, or both, committed

on occasions different from one another, such person shall b e f i n e d under this title and impris o n e d not less than fifteen years. . .” 18 U.S.C. § 924(e). Under § 924(e), a “vi o l e n t felony” is defined as any crime punishable by a term of imprisonment exceeding one year that: “(i) has as an element the use, attempted
use, or threatened use of physical force against the p erson of another; or (ii) is burglary, arson, or extortion, involves the us e of exp lo s ive s , or otherwise involves conduct that presents a serious potential risk o f physical injury to another.” § 924(e)(2)(B). Joslin contends that the district court reversibly erred in determining that he qu al ified for the sentence enhancement provision found in § 924(e). He argues that only the August 7, 1997 conviction for burglary of a building was a

“vi o l e n t f

elony” under the ACCA, and, therefore, the imposition of the fifteen
year m i ni m um sentence was erroneous. First, Joslin asserts that the 1992 convi c t i o n f

o r burglary of a habitation did not fit the generic, contemporary
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definition of burglary, as require d f or application of the ACCA, because the Texas Penal Code encompasses possible burglary convictions for those persons with lesser possessory interests “in which few, if any , o th er states would find him guilty of the crime of burglary.” Second, Joslin cont ends that the court

e rr o n eously included his 1997 Texas deferred adjudication for burglary of a building offense as a “conviction” of a “violent felony” because, under Texas law, he was never adjudicated guilty. In response, the gov e rnment asserted that the 1992 conviction properly qualified as a “violent felony” because the Texas burglary provision, T E X
. P E NAL C O D E § 30.02, falls under the generic definition of “unlawful or unprivileged entry into, or remaining in , a b u il di n g or structure, with intent to commit a crime.” See Taylor v. United States , 495 U.S. 575, 599 (1990). The government further contends that, when considering the 1997 deferred adjudication, federal law applies in the determination of a “conviction,” and the court pro p erly included the offense in the ACCA enhancement application. In order for this court to overrule the district court decision, Joslin must
prove that two of the contested offenses from the PSR are not “violent felonies” under the ACCA. We hold that the district court correctly found three predicate “violent felonies” when applying the ACCA sentence enhancement and affirm.

A. 1992 Conviction for Burglary of a Habitation We review the interpretation of a sentence enhancement provision de

novo. United States v. Montgomery , 40 2 F

. 3 d 482, 485 (5th Cir. 2005). The Supreme Court defined “generic” burglary, for purposes of the ACCA, as an “unlawful or unprivileged entry into, or rema i ning in, a building or structure with intent to commit a crime.” Taylor , 495 U.S. at 599. When determining if a guilty plea to a burglary offense coincides with the generic definition, this court is permitted to look only to “the statutory definition, charging document, written

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plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States , 544 U.S. 13, 16 (2005). Moreover, if the plea refers to a n o n -generic statute, the court is limited to the terms of the charging document, pl e a a gr e ement, or transcript of the colloquy in which the factual basis for the plea was confirmed by the defendant to determine if th a t p a rticular offense amounts to a “violent felony” for ACCA enhancement. Id. at 26. On October 19, 1992, Joslin pleaded guilty to a burglary of a habitation in Texas state court

. Th e Texas Penal Code provision in effect at that time provided that a person commits burglary if, without the consent of the owner, he: (1) enters a habitation, or building (or any portion of a building) not then open to the public, with the 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. T E X
. P E NAL C O D E § 30.02 ( 1991). Under the code, an “owner” is a person who 1 has “title to the property, possession of the property, whether lawful or not, or
a greater right to possession of the property than the actor.” § 1.07(a)(24) (1991). 2 The cha r gi n g document stated that Joslin “[w]ith intent to commit a theft, entered a habitation owned by Pedro Villanueva, a person having greater right t o p o ssession than Defendant and hereafter styled the Complainant, witho u t effective consent of the Complainant, namely, without consent of any kind.” The Harris County District Court then sentenced him to five years of imprisonment. The Fifth Circuit has consistently held that an offense under § 30.02(a)(1) coincides with the “generic” burglary definition necessary t o p r o ve a “violent felony” for the purposes of the ACCA. United States v. Eddins , 451 F. App’x 395,

§ 30.0 2 wa s ame nded in 1999 to inclu de ass ault, but othe rw ise the st atut e h a s not 1 changed

. § 1 .07( a)( 24) is nowc odifie d as § 1 .07( a)( 35)

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396 ( 5th Cir. 2011); United States v. Constante , 544 F.3d 584, 5 8 5

- 8 6 ( 5 th Cir. 2008) (citing United States v. Silva , 957 F.2d 157, 162 (5th Cir. 1992)). However, this court does not recognize § 30.02(a)(3) as a generic burglary because it lacks the element of intent. Constante , 544 F.3d at 586. Because Joslin’s plea fails to detail the specific subsection of the offense, the court may look to the language in the plea agreement to determine which subsection is applicable. See Eddins , 451 F. App’x at 396. The charging document’s language “with intent to commit theft, entered

a habitation.

. .” clearly tracks that found in § 30.02(a)(1) (1991) stating a person commits an offense of burglary if “without the effective consent of the owner, he enters a habitation.

. . with the intent to commit a felo ny o r th e f t , ” which this court has repea t e dly h eld is generic burglary for purposes of ACCA enhancement. Id. We must note, however, that United States v. Silva and its progeny do not consider offenders with lesser posses sory interests. Nevertheless, Joslin has failed to provide on appeal any evidence that Congress intended to exclude Texas’ unique definit i o n o f ownership when applying the ACCA. In Taylor v. United States , the Supreme Court found that Congress listed burglary, along with arson, in its enumerated offenses because of the crime’s “inherent potential for harm to persons.” 495 U.S. at 588. The Court found that Congress intended to prohibit crimes that often result in the pos s ib ili ty of violence between the offender and an occupant. Id. M erely m aintaining an inferior possessory interest in a h ab it atio n do e s not extinguish the p o t e nt i al violence that may result when a person enters a habitation with intent to commit theft. Therefore, we find that Joslin’s 1992 conviction is the type of generic crime contemplated by Congress, and, based on this court’s consistent precedent since Silva , the district court properly included the offense when applying the ACCA enhancement.

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B. 1997 Texas Deferred Adjudication We review issues first rai s e d o n appeal for plain error. United States v. Gore , 636 F.3d 728, 742 (5th Cir. 2011), cert. denied , 132 S. Ct. 1633 (2012). Joslin did not object to the use of the August 7, 1997 Texas deferred adjudication for burglary of a building when th e di s t ri ct court applied the statutory

e nh a n c ement. Accordingly, this court reviews the issue for plain error, a n d , under this standard, we may reverse if the district court’s error was c l e a r or obvious, and affected the defendant’s substantial rights. Id. If Joslin can prove such error, this court has the discretion to correct it, but only if the error seriously affects the fairne ss, integrity, or public reputation of judicial proceedings. Puckett v. United States , 556 U.S. 129, 135 (2009). Under the statute, a conviction shall be determin e d “in accordance with the law of the juri s diction in which the proceedings were held.” 18 U.S.C. § 921(a)(20). As a result, Texas law applies when defining a conviction for sentence enhancement under the ACCA. Under Texas law, a conviction always requires a n a d

j u di c ation of guilt. McNew v. State , 608 S.W.2d 166, 172 (Tex. Crim. App. 1978); see also, Webb v. City of Dallas , 211 S.W.3d 808, 816 (Tex. App.–Dallas 2006, pet. denied) (stating discharge of a deferred adju di c a t i o n usually constitutes a dismissal withou t conviction)). Furthermore, the Texas C o d e o f Criminal Procedure states that upon expiration of the deferred adjudication probation, “if the judge has not proceeded to adjudication of guilt, the judge shall dismis s the proceedings against the defendant and discharge him.” T E X
. C O D E C R I M
. P R O C

. AN N
. art. 42.12 § 5(c). However, 42.12 § 5(c) also provides, “upon conviction of a subsequent offense, the fact that the defendant had previously received community supervision with a deferred adjudication of guilt shall be admissible before the court or jury to be considered on the issue of penalty.” Art. 42.12 § 5(c)(1). Joslin argues that the district court plainly erred when it included his 1997 deferred adjudica t i o n f or burglary of a building because he was never adjudicated guilty. He asserts that, under McNew’s requirement of adjudication
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of guilt, the offense does not satisfy a “conviction” for purposes o f A CCA enhancement. Therefore, Joslin contends, the district court plainly erred when including the offense as a “violent felony

. ” We have previously rec o gni z e d , wh e n c o n s i derin g a dif ferent enhancement provision, that a Texas deferred adjudication following a guilty plea count s as
a conviction under federal law regardless of whether there is an adjudication of guilt. United States v. Mondragon-Santiago , 564 F.3d 357, 368 (5th Cir. 2009). In United States v. Daniels , thi s court affirmed the district court’s conclusion that a Texas deferred adjudication sentence may be applied as a prior conviction under state and federal law during subsequent sentencin g p r o ceedings, regardless of di s m i s s al of the state indictment. 588 F.3d 835 (5th Cir. 2009). Therefore, we cannot find that the district court plainly erred under Art. 42.12 § 5(c)(1) or the holding in Daniels when it included Joslin’s deferred adjudication as a prior conviction. CONCLUSION Because Joslin has failed to prove that the dist ri c t court improperly i n c l uded either the 1992 or 1997 offense when applying the ACCA sent e n c e enhancement, there were three predicate offenses, and the district court did not

err in sentencing Joslin to fifteen years of imprisonment under 18 U.S.C. § 924(e), we AFFIRM the judgment of the district court.

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