IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40053

United States of America

Plaintiff-Appellee

v.

Marcos Castillo-Morales

Defendant-Appellant

Appeal from the United States District Court for the

Southern District of Texas - Brownsville Division

Before JONES, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

EDITH H. JONES, Chief Judge:

Marcos Castillo-Morales (“Castillo”) appeals the sentence imposed after he

pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326(a). Over Castillo’s

objection, the district court enhanced his offense by 16 levels based on its

conclusion that Castillo’s prior Florida conviction for second-degree burglary was

a “crime of violence” within section 2L1.2 of the United States Sentencing

Guidelines (“U.S.S.G.”). Because the relevant Florida court documents indicate

Castillo committed the “crime of violence” of “burglary of a dwelling,” as

enumerated in U.S.S.G. § 2L1.2, we affirm. 

United States Court of Appeals

Fifth Circuit

F I L E D

November 8, 2007

Charles R. Fulbruge III

Clerk
No. 07-40053

2

BACKGROUND

Castillo is a Mexican citizen who has been convicted of crimes in a number

of states and deported twice. In July 2006, following his second deportation,

border agents found Castillo hiding in brush in Combes, Texas. After his arrest,

Castillo pleaded guilty to illegal reentry following an aggravated-felony

conviction and deportation in violation of 8 U.S.C. § 1326(a).

In January 2007, the district court sentenced Castillo to 70 months

imprisonment after calculating a sentencing guideline range of 70–87 months.

To reach that guideline range, the district court applied, among other

adjustments, a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) after

determining that Castillo’s 2006 Florida conviction for burglary under FLA.STAT.

§ 810.02 constituted a “crime of violence.” Castillo objected to the district court’s

treatment of his 2006 burglary conviction as a “crime of violence.” He also

argued that the use of prior convictions as sentencing factors under 8 U.S.C.

§ 1326(b) is unconstitutional. The district court overruled these objections and

Castillo filed a timely notice of appeal.

DISCUSSION

I.

Castillo argues the district court erred in concluding that a burglary

conviction under FLA. STAT. § 810.02 (1), (3) (2005) qualifies as a “burglary of a

dwelling” under U.S.S.G. § 2L1.2’s definition of “crime of violence.” U.S.S.G.

§ 2L1.2 cmt. n.1(B)(iii) (2006). Because Castillo preserved the error by objecting

to the enhancement in the district court, we review the interpretation of the

sentencing guidelines de novo. United States v. Calderon-Pena, 383 F.3d 254,

256 (5th Cir. 2004) (en banc), cert. denied, 543 U.S. 1076 (2005).

Section 2L1.2 increases the offense level for unlawfully entering or

remaining in the United States by 16 levels if the defendant has a prior

conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The
No. 07-40053

3

commentary to § 2L1.2 defines “crime of violence” as (1) any specific enumerated

offense, including “burglary of a dwelling”; or (2) “any offense under federal,

state, or local law that has as an element the use, attempted use, or threatened

use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt.

n.1(B)(iii). The Government contends only that Castillo’s burglary conviction

constitutes an enumerated “crime of violence” offense, namely, “burglary of a

dwelling.” We pretermit discussion whether the offense has as an element the

use of force.

The determination whether a prior conviction is an enumerated “crime of

violence” requires an examination of the “generic contemporary meaning” of the

offense and a comparison to the actual statute of conviction. See United States

v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006). This court applies a

common-sense approach to elucidate an enumerated offense as that offense “is

understood in its ordinary, contemporary, and common meaning.” Id. Under the

common-sense approach, a dwelling is any structure, including a tent or vessel,

thatis used for human habitation. Id. at 345; see also United States v. MendozaSanchez, 456 F.3d 479, 482 (5th Cir. 2006). Thus, Castillo’s prior conviction is

a “crime of violence” only if itinvolved burgling a structure, tent, or vessel where

someone lives.

Next, we compare the common sense definition with the particular

subdivision of the second-degree burglary statute under which Castillo was

convicted. United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006).

“Burglary” under FLA. STAT. § 810.02 means “[e]ntering a dwelling, a structure,

or a conveyance with the intent to commit an offense therein, unless the

premises are atthe time open to the public or the defendantis licensed or invited

to enter.” FLA. STAT. § 810.02(1)(b). “Dwelling” is defined as “a building or

conveyance of any kind, including any attached porch, whether such building or

conveyance is temporary or permanent, mobile or immobile, which has a roof
No. 07-40053

4

over it and is designed to be occupied by people lodging therein at night,together

with the curtilage thereof.” FLA. STAT. § 810.011(2) (2005).

In United States v. Gomez-Guerra, 485 F.3d 301, 303–04 (5th Cir. 2007),

this court held that a conviction under FLA. STAT. § 810.02 was not a “crime of

violence” because under the statute, a “dwelling” includes the curtilage around

the structure, which is not ordinarily habitable by humans. But Gomez-Guerra

does not end our inquiry here. “If the statute of conviction is overly broad, we

may also examine certain adjudicative records to determine whether the prior

conviction qualifies as an enumerated offense.” Murillo-Lopez, 444 F.3d at

339-40. “These records are generally limited to the ‘charging document, written

plea agreement, transcript ofthe plea colloquy, and any explicit factual findings

by the trial judge to which the defendant assented.’” Id. (quoting United States

v. Gonzalez-Chavez, 432 F.3d 334, 337–38 (5th Cir. 2005)). The Government

contends that the court documents underlying Castillo’s plea establish that he

was in fact convicted of “burglary of a dwelling.”

Considering the adjudicative records, the district court found that during

the Florida plea colloquy, Castillo stipulated to “a factual basis” for his offense,

and he similarly stipulated based on “documents in the court file, including the

complaint affidavit(s).” The “798 Charging Affidavit” includes an admission

from Castillo’s accomplice and co-defendant Escoto, which states he and Castillo

“entered the residence through an unsecured kitchen window”(emphasis added).

The charging affidavit also indicates that after the investigator spoke with

Escoto, Castillo “also confessed to the Burglary.” On this basis, the district court

concluded that Castillo’s 2006 Florida burglary offense was a crime of violence

because he burgled a house, not just curtilage.

Castillo does not dispute what the “798 Charging Affidavit” says. Rather,

he argues that neither his admission to “a factual basis” for the charge of

burglary during the plea colloquy nor his written plea agreement identifies as
No. 07-40053

1 Castillo argues that because the documentfound in the courtfile is entitled,“Charging

Affidavit,” not “Complaint Affidavit,” there is no evidence that he assented to the facts present

in the “Charging Affidavit.” Paragraph three of the plea agreement states, “I agree that a

factual basis for the court to accept my plea(s) is contained in documents in the court file,

including the complaint affidavit(s).” Although no document in the court file is entitled

“Complaint Affidavit,” the Florida court document that describes the “factual basis” for the

plea, beyond simply calling the offense “burglary of a dwelling,” is the “798 Charging

Affidavit.” We reject Castillo’s attempt to build his argument on discrepancies in Florida court

nomenclature.

5

the source of the factual basis paragraph two of the “798 Charging Affidavit.”

The plea agreement states only that there is “a factual basis” for the offense in

the “court documents,” including the “complaint affidavit.”1 The “factual basis”

to which he assented may have been in one of the other documents, all of which

simply identified the offense as “burglary of a dwelling.” Under Florida law, as

noted, burglary of a dwelling includes curtilage. FLA. STAT. § 810.011(2) (2006);

see also Gomez-Guerra, 485 F.3d at 303-04. Therefore, Castillo contends, the

district court could not conclude that his guilty plea “necessarily rested on the

fact identifying the burglary as [the] generic” burglary of a dwelling offense

enumerated in the sentencing guidelines. See Shepard v. United States,

544 U.S. 13, 20–21 (2005).

Essentially, Castillo asks this court to craft a new rule requiring that

when a defendant stipulates that “a factual basis” for his offense is found in

“court documents,”the specific facts assented to by the defendant, or the specific

documentthat served as the factual basis for the plea, must be exactly identified

in the record. Otherwise, the sentencing court cannot properly ascertain

whether the plea and conviction “necessarily rested on the fact identifying the

burglary as generic.” But, we conclude, the Supreme Court’s opinion in Shepard

requires no such rule.

Shepard allowed courts to examine certain court documents to locate

elements of the offense. Id. In this case, Castillo stipulated to a factual basis for

his offense that could be found in the court documents, specifically, the charging
No. 07-40053

2 The central purpose of the elements-based, categorical approach for determining

whether prior convictions are crimes of violence is to avoid evidentiary inquiries into the

factual basis for the earlier conviction. Shepard, 544 U.S. at 20. The modified categorical

approach of Shepard “dr[aws] a pragmatic conclusion about the best way to identify generic

convictions.” Id. Our holding here is consistent with Shepard’s “pragmatic approach.”

3 The “court documents” must be of the type allowable under Shepard, namely, the

charging document, the plea agreement, a transcript of a colloquy between the defendant and

the judge in which the factual basis for the plea is confirmed, explicit factual findings by the

district court to which the defendant assented upon entering the plea, or some comparable

judicial record ofthis information. See Shepard, 544 U.S. at 20–21, 26; see also Murillo-Lopez,

444 F.3d at 339–40.

6

affidavit that indicated he entered a residence through a kitchen window. This

factual basis was not contradicted by any other facts found in the court records.

No evidentiary hearing was required to sort out what offense Castillo actually

committed.2 Thus, the facts to which Castillo stipulated in the Florida court

documents were effective in assisting the federal court’s determination that he

committed a crime of violence. We hold that when a defendant stipulates that

“a factual basis” for his plea is present in “court documents,” courts may use any

uncontradicted facts in those documents to establish an element of a prior

conviction.3 See also Mendoza-Sanchez, 456 F.3d at 483 (“We are satisfied that

the district court can use all facts admitted by the defendant in determining

whether a prior conviction qualifies as an enumerated offense under § 2L1.2.”).

Castillo argues that allowing sentencing courts to use facts in court

documents not specifically stipulated by a defendant as the factual basis for his

plea is inconsistent with this court’s prior holding in United States v. GonzalezRamirez, 477 F.3d 310 (5th Cir. 2007). Gonzalez-Ramirez states that “[a]bsent

clarification regarding the offense and conviction,” the court “determine[s]

whether the least culpable act constituting a violation ofthat statute constitutes

the enumerated offense for purposes of U.S.S.G. § 2L1.2.” Id. at 314–15

(emphasis added). In Gonzalez-Ramirez, however, there were no state court

documents illuminating whether the defendant’s Tennessee conviction of
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attempted kidnapping was the enumerated crime of kidnapping under § 2L1.2.

Where, as here, there are court documents containing the factual basis for the

conviction, Gonzalez-Ramirez does not apply.

Castillo’s 2006 Florida burglary conviction was therefore a crime of

violence under U.S.S.G. § 2L1.2 because the “generic” enumerated offense of

“burglary of a dwelling” requires the burgling of a structure, tent, or vessel

where someone lives, and Castillo stipulated to that factual basis for his plea in

the charging affidavit.

II.

In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Castillo also

challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony

and aggravated felony convictions as sentencing factors rather than elements of

the offense that must be found by a jury. This court has held that the issue is

“fully foreclosed from further debate.” United States v. Pineda-Arrellano,

492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No.

07-6202).

The judgment and sentence of the district court are

AFFIRMED.