IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10590

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

SAMUEL CONDE-CASTANEDA,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.

E. GRADY JOLLY, Circuit Judge

Samuel Conde-Castaneda appeals his sentence, which was enhanced 

based on his previous conviction in Texas state court for burglary under Texas

Penal Code § 30.02(a)(1) and (a)(3). The question presented is whether this

predicate offense constitutes a “burglary of a dwelling” under the Sentencing 

Guidelines and is therefore a crime of violence. We hold that it does, and it is. 

We also hold that Conde’s written Texas “boiler plate” judicial confession, in 

which he confessed to “each and every act alleged” in the indictment, is 

sufficient to establish that his prior conviction rested on every offense the 

indictment charged.

I. 

Conde is a Mexican citizen who had been deported in 2007 and 2011. He 

was arrested again and convicted in 2012 for illegal reentry. At the sentencing 

United States Court of Appeals

Fifth Circuit

FILED

May 28, 2014

Lyle W. Cayce

Clerk

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No. 13-10590

for this offense, 16 levels were added to Conde’s offense level because he had 

previously committed a felony “crime of violence.” See U.S. SENTENCING 

GUIDELINES MANUAL (“USSG”) § 2L1.2(b)(1)(A)(ii) (2013). This enhancement 

was based on Conde’s 2009 Texas conviction for burglary. According to the 

PSR before the district judge, the judgment for this predicate offense was 

attached thereto. Conde did not object to the enhancement.

With the 16-level crime of violence enhancement, Conde’s final offense 

level rose to 21. The judge imposed a 57-month prison term, which was at the 

top of the Guidelines range, plus two years of supervised release.

Conde now appeals his sentence. He argues that the burglary conviction 

supporting his crime of violence enhancement did not qualify as a “crime of 

violence” under the Sentencing Guidelines.

II.

Conde challenges his enhancement for the first time on appeal. We 

consequently review the enhancement for plain error. “[R]eversal is not 

required unless there is (1) an error; (2) that is clear or obvious; and (3) that 

affects the defendant’s substantial rights.” United States v. Bishop, 603 F.3d 

279, 280 (5th Cir. 2010). Even if all these conditions are fulfilled, the appellate 

court will only reverse if the error “seriously affects the fairness, integrity, or 

public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 

129, 135 (2009) (internal quotation marks omitted).

Conde was convicted under parts (1) and (3) of the following Texas 

statute:

A person commits an offense if, without the effective consent of the 

owner, the person:

(1) enters a habitation . . . not then open to the public, with intent 

to commit a felony. . . or

(2) remains concealed, with intent to commit a felony . . . in a . . . 

habitation; or

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(3) enters a . . . habitation and commits or attempts to commit a 

felony . . . .

Tex. Penal Code § 30.02(a).

The first question raised is whether the court can consult outside 

documents to determine whether Conde’s prior burglary conviction constitutes 

a “crime of violence” under the Sentencing Guidelines. USSG § 2L1.2(b)(1).1 

We hold that we can.

Under the Sentencing Guidelines, “crime of violence” convictions include 

state convictions for “burglary of a dwelling.” USSG § 2L1.2 cmt. n.1(B)(iii). 

There are two ways we can determine whether Conde’s predicate offense 

qualifies as a “burglary of a dwelling,” and consequently a “crime of violence.”2

One is to look only to the elements of Conde’s predicate offense. If § 

30.02(a)’s elements are the same as or narrower than those of the generic 

offense of burglary of a dwelling, Conde’s predicate offense qualifies as a “crime 

of violence.” See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 3 The 

Supreme Court has called this test the categorical approach, as the test looks 

to the category of conduct the statute criminalizes rather than the facts 

underlying the defendant’s predicate offense.

1 USSG § 2L1.2(b) requires a 16-level enhancement if (a) the defendant was deported, 

or unlawfully remained in the United States, (b) after “a conviction of a felony that is . . . a 

crime of violence;” (c) “if the conviction receives criminal history points under Chapter Four.” 

On appeal, the parties dispute only the “crime of violence” prong.

2 The USSG also defines “crime of violence” as “any other offense . . . that has as an 

element the use, attempted use, or threatened use of physical force against the person of 

another.” USSG § 2L1.2 cmt. n.1(B)(iii). Tex. Penal Code § 30.02(a), however, does not 

necessarily require physical force and consequently does not fall within the “crime of violence”

residual clause. See United States v. Turner, 305 F.3d 349, 351 (5th Cir. 2002).

3 Although Descamps involved the Armed Career Criminal Act (“ACCA”), the Fifth 

Circuit has drawn heavily on ACCA cases in its Sentencing Guidelines jurisprudence. See, 

e.g., United States v. Rodriguez, 711 F.3d 541, 553 (5th Cir. 2013) (en banc).

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The second way to determine whether Conde’s prior conviction qualifies 

as a “burglary of a dwelling” under the Sentencing Guidelines is to look beyond 

the elements of the statute to a limited set of documents. Under this test, 

called the modified categorical approach, the court can look at so-called 

Shepard documents, which include the charging document, written judicial 

confession, and judgment. United States v. Garcia-Arellano, 522 F.3d 477, 

480–81 (5th Cir. 2008). The categorical approach is the default test. Cf. 

Descamps, 133 S. Ct. at 2281. The modified categorical approach, however,

applies when the defendant’s predicate offense was violating a statute 

containing divisible crimes. That is, the defendant’s predicate offense involves 

a statute that

sets out one or more elements of the offense in the alternative —

for example, stating that burglary involves entry into a building or

an automobile. If one alternative (say, a building) matches an 

element in the generic offense, but the other (say, an automobile) 

does not, the modified categorical approach permits sentencing 

courts to consult a limited class of documents . . . to determine 

which alternative formed the basis of the defendant’s prior 

conviction.

Descamps, 133 S. Ct. at 2281.

We hold that the modified categorical approach applies here, meaning 

that we will consult Shepard documents to determine which of the three 

alternatives of Texas Penal Code § 30.02(a) forms the basis of Conde’s 

conviction. This test applies because § 30.02(a) is a divisible statute – “one 

alternative . . . matches an element in the generic offense [of burglary of a 

dwelling], but the other . . . does not.” Descamps, 133 S. Ct. at 2281. The 

generic offense of burglary of a dwelling requires entering a habitation with 

the intent to commit a crime. See United States v. Constante, 544 F.3d 584, 

587 (5th Cir. 2008). Because § 30.02(a)(1) expressly requires this intent, we 

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have held that a prior conviction for violating that section is a “burglary of a 

dwelling” under the Sentencing Guidelines. United States v. Garcia-Mendez, 

420 F.3d 454, 456–57 (5th Cir. 2005). By contrast, § 30.02(a)(3) lacks such an 

intent requirement and consequently does not qualify as a “burglary of a 

dwelling.” Constante, 544 F.3d at 587.

Three unpublished Fifth Circuit opinions agreed that the modified 

categorical test applies to § 30.02(a) predicates. See United States v. CervantesAguilar, 463 F. App’x 256, 258 (5th Cir. 2012); United States v. Valdes, 403 F. 

App’x 885, 892–94 (5th Cir. 2010); United States v. Chapman, 431 F. App’x 

337, 338 (5th Cir. 2011).

Conde would have us apply the categorical approach rather than the 

modified categorical approach. He relies on Chambers v. United States, 555 

U.S. 122 (2009). In that case, Chambers had a prior conviction for violating a 

statue that criminalized, in a single subsection, both escape and failure to 

report. At issue was whether this conviction constituted a violent felony and 

thus triggered a mandatory minimum 15-year sentence. Id. at 124. Chambers 

held that, although escape and failure to report were grouped together in the 

same statutory subsection, the two should be considered separate offenses for 

the purposes of the categorical approach test. Id. at 126-27.

Chambers also stated that some failure to report offenses should be 

grouped together when conducting the categorical approach test. Id. at 127. 

The Chambers predicate offense involved “fail[ing] to report to a penal 

institution or to report for periodic imprisonment at any time or knowingly 

fail[ing] to return from furlough or from work.” Id. at 130. The Court grouped 

these failure to report offenses together. Id. at 127.

To Conde, Chambers stands for a rule that if two subsections of a statute 

amount to “variations on a single theme,” the court should apply the 

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categorical approach, even if one subsection qualifies for an enhancement and 

another does not. Cf. id. Conde maintains that § 30.02(a)(1) and § 30.02(a)(3) 

should be grouped together and analyzed under the categorical approach. 

Essentially, Conde asserts that Chambers substantially limits the modified 

categorical approach in favor of the categorical approach.

We reject Conde’s argument as having no basis in authority. Chambers 

concerns itself wholly with how to apply the categorical approach. See id. at 

124–27. The opinion is not about choosing whether the categorical or modified 

categorical approach applies, which is how Conde reads it. Indeed, Chambers 

makes no mention of the modified categorical approach at all. That Conde cites 

no cases supporting his reading of Chambers further indicates that his reading 

is unfounded. 

Moreover, Descamps, decided after Chambers, discusses the modified 

categorical approach in-depth and does not in any way support the rule Conde 

proposes. To the contrary, Descamps reiterated that the modified categorical 

approach should apply when one alternative of a statute “matche[d] an element 

in the generic offense, but the other . . . [did] not.” Descamps, 133 S. Ct. at 

2281. As we stated earlier, this is exactly the case with § 30.02(a)(1) and § 

30.02(a)(3).

Consequently, we follow the clear rules set out in Descamps and hold 

that the modified categorical approach applies here.

III.

We now apply the modified categorical approach to this appeal.

Conde first argues that the district court relied solely on the PSR to 

determine the conduct of the defendant’s prior conviction. Sole reliance on the

PSR is error, United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005),

because the PSR is not within the limited class of Shepard documents the court 

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may consult, as it is not a “conclusive record[] made or used in adjudicating 

guilt” in the defendant’s prior conviction. Id.

We reject as factually incorrect Conde’s argument that the district court 

relied solely on the PSR. As Conde’s reply brief concedes, the district court 

relied on the judgment from Conde’s prior conviction at sentencing.

Conde next argues that the record does not show that his predicate 

offense constituted a “crime of violence.”

In reviewing an enhancement, this court examines the record as 

supplemented on appeal. The question is whether there is error at the time of 

appellate consideration rather than at the time of trial. Garcia-Arellano, 522 

F.3d at 480. The supplemented record contains Conde’s indictment, judgment, 

and written judicial confession. The indictment and judgment are unhelpful 

in determining which portion of § 30.02(a) formed the basis of Conde’s 

predicate offense. Conde’s indictment establishes that Conde was charged 

with violating § 30.02(a)(1) and § 30.02(a)(3), but obviously cannot by itself 

establish the ultimate basis for his conviction. Moreover, Conde’s judgment 

establishes that Conde violated § 30.02(a) but does not establish which 

subsection. The judgment listed the statute violated as § 30.02(c)(2), which 

indicates only that Conde violated § 30.02(a), and did so by entering a 

habitation. 

Consequently, the written judicial confession is the key document in 

determining what part of § 30.02(a) Conde violated. Conde’s judicial 

confession, contained in his plea admonishment, states “I have read the 

Indictment . . . and I committed each and every act alleged therein . . . .” The 

confession is a pre-printed template under which Conde signed his name. At 

issue is whether this template confession sufficiently establishes that Conde 

was convicted of § 30.02(a)(1). We hold that it does. 

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In Garcia-Arellano, a template confession sufficed to establish which 

offenses a conviction indicated. Garcia-Arellano involved a predicate to 

“deliver” narcotics that included both conduct sufficient (transferring cocaine) 

and insufficient (offering to sell cocaine) for an enhancement. Garcia’s

template confession stated that he did “knowingly . . . actually transfer, 

constructively transfer and offer to sell” cocaine, and that he “committed the 

offense with which [he stood] charged exactly as alleged in the indictment.” 

522 F.3d at 481. Garcia-Arellano relied on the confession in holding that the 

enhancement applied. Several unpublished opinions have applied GarciaArellano to indictments involving § 30.02(a)(1) and § 30.02(a)(3), finding that 

template confessions supported enhancements. Valdes, 403 F. App’x at 892–

94; Chapman, 431 F. App’x at 338; Cervantes-Aguilar, 463 F. App’x at 258.

Conde, however, counters with United States v. Espinoza, 733 F.3d 568 

(5th Cir. 2013). The predicate offense at issue in Espinoza was an assault 

fulfilled by intentionally, knowingly or recklessly causing bodily injury to 

another. Intentional and knowing assaults probably qualified as a crime of 

violence, but it was previously unclear if reckless assaults did as well. 

Espinoza stated in his confession that he “admit[ted] all of the allegations in 

the indictment,” which in turn had accused him of “intentionally, knowingly,

and recklessly” assaulting his wife. Id. at 571–72. The court held that the 

“adoption of the judicial confession [was] simply a blanket statement admitting 

that [Espinoza] committed the assault with every listed category of mental 

culpability” and did not conclusively prove mens rea. Id. at 572. Consequently, 

the court applied a “least culpable means” analysis, assuming that Espinoza’s 

offense was committed recklessly.

Conde argues that Espinoza applies here, not Garcia-Arellano. In 

Conde’s view, Espinoza promulgates a rule that pleading guilty in a template 

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confession does not establish which of the alternate versions of a crime you 

have pleaded guilty to, for the purpose of the Sentencing Guidelines.

We reject Conde’s argument. Espinoza cannot overturn the earlier 

decided case of Garcia-Arellano. To the extent that the holding of Espinoza is 

inconsistent with Garcia-Arellano, Garcia-Arellano controls. See Lowrey v. 

Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (“[P]anel decisions 

may be overruled only by a subsequent decision of the Supreme Court or by 

the Fifth Circuit sitting en banc.”). Espinoza cited no authority when it stated 

that the judicial confession failed to support the enhancement. See 733 F.3d 

at 572. Espinoza’s scant reasoning indicates either that the case is a true 

outlier in our caselaw, that its pronouncement was dicta, or both.

Applying Garcia-Arellano, Conde’s judicial confession adequately 

established that he was convicted of violating all the offenses listed in the 

indictment, including § 30.02(a)(1). We have previously found that § 

30.02(a)(1) constitutes “burglary of a dwelling” under the Sentencing 

Guidelines. Garcia-Mendez, 420 F.3d at 456–57. Consequently, Conde’s 

judicial confession establishes that his crime of violence sentencing 

enhancement was correctly imposed.

IV.

For the foregoing reasons, the district court’s judgment is

AFFIRMED.

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