[PUBLISH] IN THE UNITED STA TES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12-15602

________________________ D. C. Docket No. 8:12-cr-00169-EAK-MAP-1 UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus LAZARO RAMIREZ-FLORES, Defendant-Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

_________________________
Before MARTIN and ANDERSON, Circuit Ju dges, and FULLER,* District Judge.

____________ *Honorable Mark E. Fuller, United States District Judge for th e Middle District of Alabama sitting by designation.

Case: 12-15602 Date Filed: 06/27/2014 Page: 1 of 32 PER CURIAM: The petition for rehearing is DENIED, and no judge in regular active service on the Court having requested that the Cour t be polled on rehearing en banc (Rule 35, Fed.R.App.P.), the petition for re hearing en banc is DENIED. We reject Ramirez-Flores’ argument that United States v. Howard, 742 F.3d 1334 (11th Cir. 2014), published two days befo re the publication of this decision, indicates that the South Caro lina statute at issue in th is case is indivisible under Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013). The Howard court addressed the issue pursuant to a pres erved Descamps challe nge, and held that the Alabama statute at issu e there was indivisible under the de novo standard of review. 742 F.3d at 1340–41, 1349. By cont rast, Ramirez-Flores did not preserve a Descamps challenge, and this panel held that it was not “plain or obvious that the [South Carolina] statute is indivisible.” United States v. Ramirez-Flores, 743 F.3d 816, 823 (11th Cir. 2014). Rather, we held that one reasonable interpretation of the South Carolina statute was to criminalize “entry without consent and with criminal intent into either a structure in which so meone sleeps or a shed or other structure appurtenant thereto and within 200 yards thereof.” Id. at 822. Our holding is entirely consistent with Howard’s key to determining divisibility. 742 F.3d at 1348 (“The key to determining divisibility, acc ording to Descamps, is whether the ‘statute sets out one or more elements of the offense in the alternative – for

Case: 12-15602 Date Filed: 06/27/2014 Page: 2 of 33 example, stating that burglary involves en try into a building or an automobile’” (quoting Descamps, 133 S. Ct. at 2281)). Our holding is also entirely consistent with the application of the divisibility analysis in Howard, because the language of the statutes in the two cases is very different. In Howard, the statute’s langua ge clearly created a non-exhaustive list of illustrative examples of structures whic h could form the basis of a burglary conviction. See id. at 1348–49. By contra st, the statute we considered in RamirezFlores’ appeal created an exhaustive list of such structures. See S.C. Code §§ 16- 11-10, 16-11-310(2), 16-11-312(A). As a re sult, Howard does not provide a reason to treat the statute under which Ramirez-Fl ores was convicted as indivisible under the plain error standard of review. See United States v. Carruth, 528 F.3d 845, 846 n.1 (11th Cir. 2008) (“For a plain error to ha ve occurred, the error must be one that is obvious or clear under current law.”).

Case: 12-15602 Date Filed: 06/27/2014 Page: 3 of 3