IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40190

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DAVID ALEJANDRO HERNANDEZ–BORJAS, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:14-CR-1485

Before CLEMENT and HAYNES, Circuit Judges, and GARCIA 

MARMOLEJO, District Judge.*

PER CURIAM:**

David Alejandro Hernandez–Borjas pleaded guilty to illegal reentry in 

violation of 8 U.S.C. § 1326 and appeals his 80-month sentence. Hernandez–

Borjas argues the district court erred by applying a 16-level crime of violence 

nhancement based on his Texas conviction for burglary of a habitation. For 

the following reasons, we AFFIRM Hernandez–Borjas’s sentence. 

 

* District Judge of the Southern District of Texas, sitting by designation.

** 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

March 3, 2016

Lyle W. Cayce

Clerk

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I.

Hernandez–Borjas pleaded guilty to illegal reentry in violation of 8 

U.S.C. § 1326. The Presentence Investigation Report (PSR) began with a base 

offense level of 8 and calculated that Hernandez–Borjas was subject to a 16-

level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his

Texas conviction for burglary of a habitation. 

Hernandez–Borjas objected to the 16-level enhancement, arguing the 

Government failed to prove that his second-degree felony burglary conviction

was a crime of violence. The judgment of the conviction only listed 

“BURGLARY OF HABITATION, A LESSER INCLUDED OFFENSE,” and 

Texas Penal Code § 30.02(c)(2)—a penalty provision. According to Hernandez–

Borjas, although the indictment charged him with violating § 30.02(a)(1), the 

judgment did not rule out the possibility that he was convicted under § 

30.02(a)(3), which is not crime of violence. The district court, however,

overruled the objections and agreed with the Government’s position that §

30.02(a)(3) cannot be a lesser-included offense of § 30.02(a)(1) because the two 

have different elements. 

After a reduction for acceptance of responsibility, Hernandez–Borjas’s 

total offense level was 21 and his criminal history was category IV, which 

resulted in a guideline range of 77–96 months. The district court sentenced 

Hernandez–Borjas within the Guidelines to 80 months of imprisonment. 

Hernandez–Borjas now appeals, challenging the 16-level enhancement. 

II.

Because the issue was preserved, we review de novo the district court’s 

characterization of the prior offense as a crime of violence. See United States 

v. Bonilla, 524 F.3d 647, 651–52 (5th Cir. 2008). 

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III.

The central issue on appeal is whether Hernandez–Borjas was convicted

of burglary of a habitation under § 30.02(a)(1). In relevant part, a defendant 

violates § 30.02(a) if “the person: (1) enters a habitation . . . with intent to 

commit a felony, theft, or an assault; or . . . (3) enters a . . . habitation and 

commits or attempts to commit a felony, theft, or an assault.” Tex. Penal Code 

§ 30.02(a). Although a conviction under § 30.02(a)(1) constitutes a generic 

burglary and qualifies for a 16-level crime of violence enhancement, a 

conviction under § 30.02(a)(3) does not. United States v. Conde–Castaneda, 

753 F.3d 172, 176 (5th Cir. 2014).

Texas Penal Code § 30.02(a) is a divisible statute, so to determine which 

subsection of § 30.02(a) constituted Hernandez–Borjas’s conviction, we apply 

the modified categorical approach. Conde–Castaneda, 753 F.3d at 176. Under 

this approach, courts “look at so-called Shepard documents, which include the 

charging document, written judicial confession, and judgment.” Id. (citing 

United States v. Garcia–Arellano, 522 F.3d 477, 480–81 (5th Cir. 2008). While 

the district court only had access to the judgment and indictment, the 

supplemented record includes a document titled “WAIVER OF RIGHTS & 

CONSENT TO STIPULATION OF EVIDENCE AND/OR TESTIMONY & 

PLEA OF GUILTY OR NO CONTEST” (Guilty Plea) and Hernandez–Borjas’s

plea admonishments. See id. at 177 (“In reviewing an enhancement, this court 

examines the record as supplemented on appeal.”). 

The judgment states that Hernandez–Borjas pleaded guilty to 

“BURGLARY OF HABITATION, A LESSER INCLUDED OFFENSE,” and 

indicates that he was convicted of a second-degree felony under § 30.02(c)(2). 

Subsection (c)(2) is a penalty provision that merely establishes Hernandez–

Borjas violated § 30.02(a) by entering a habitation. Tex. Penal Code § 

30.02(c)(2) (“[A]n offense under this section is a . . . felony of the second degree 

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if committed in a habitation.”). Turning to the indictment, it alleges that 

Hernandez–Borjas “did then and there, with intent to commit the felony 

offense of Aggravated Assault, enter a habitation, without the effective consent 

of [the owner].” Unlike the judgment, the indictment does not cite to any 

particular subsection, but it does track the language and elements of § 

30.02(a)(1). See Tex. Penal Code § 30.02(a)(1). Since Hernandez–Borjas’s 

indictment matches § 30.02(a)(1), it is clear that Hernandez–Borjas was 

charged under § 30.02(a)(1).1 Thus, we must consider to what extent the 

indictment may be used in this case to determine the offense of conviction.

IV.

Hernandez–Borjas argues that because he did not plead guilty to the 

crime charged in the indictment, it cannot be used to determine if his burglary 

conviction was a crime of violence. That is, Hernandez–Borjas was indicted for 

a first-degree felony—burglary of a habitation with intent to commit 

aggravated assault—but the judgment reflects he instead pleaded guilty to a 

second-degree felony—“BURGLARY OF HABITATION, A LESSER 

INCLUDED OFFENSE.” Accordingly, Hernandez–Borjas contends that his 

conviction does not qualify as a crime of violence because he could have been 

convicted under § 30.02(a)(3).

In response, the Government argues that the indictment is relevant to 

determine the manner of Hernandez–Borjas’s conviction in light of Texas law.

 

1 When an indictment does not explicitly state a subsection, courts can rely on the 

language used to ascertain the subsection charged. For example, in United States v. Wallace, 

the court reviewed two burglary indictments with nearly identical language as Hernandez–

Borjas’s. 584 F. App’x 263, 265 (5th Cir. 2014) (per curiam). The first alleged that Wallace 

“‘then and there, with intent to commit theft, intentionally and knowingly enter[ed] a 

habitation, without the effective consent of [the owner] thereof[.]” Id. (emphasis removed)

(alteration in original). The second charged that Wallace “did then and there, with the intent 

to commit theft, intentionally and knowingly enter a habitation, without the effective consent 

of [the owner].” Id. (alteration in original). Both were deemed to be under § 30.02(a)(1). Id.

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See United States v. Martinez–Vega, 471 F.3d 559, 562–63 (5th Cir. 2006) 

(affirming the district court’s use of the indictment to narrow the subsection 

under which defendant pleaded guilty, where the defendant pleaded guilty to 

“the lesser charge contained in the Indictment”). The Government asserts that,

because § 30.02(a)(1) and § 30.02(a)(3) require proof of different facts and 

elements, according to Texas’s cognate-pleadings approach, burglary of a 

habitation under § 30.02(a)(3) cannot be a lesser-included offense of § 

30.02(a)(1). The Government explains that Hernandez–Borjas was charged 

with and pleaded guilty to burglary of habitation under § 30.02(a)(1), and that 

the difference between the judgment and the indictment relates to the penalty 

provision only. In other words, Texas law illustrates Hernandez–Borjas

necessarily pleaded guilty to the same § 30.02(a)(1) charge but with a lesserincluded punishment, which changed the degree of the offense from a firstdegree to a second-degree felony. We agree with the Government for the 

following reasons.

To start, the cases that Hernandez–Borjas primarily relies on to support 

the contention that the indictment cannot be used to narrow his conviction are 

distinguishable. In United States v. Turner, the court concluded that the 

district court erred when the defendant pleaded guilty to a lesser-included 

offense but applied a crime of violence enhancement based on the indictment, 

emphasizing that the indictment was not relevant because the basis of the 

enhancement must be “‘the conduct of which the defendant was convicted.’” 

349 F.3d 833, 836 (5th Cir. 2003) (citing U.S.S.G. § 4B1.2). Unlike Turner, 

here the indictment is relevant to determining what offense Hernandez–Borjas

was convicted under and is not being used to show the circumstances of the 

conviction. 

In United States v. Gonzalez–Ramirez, the defendant was indicted for 

aggravated kidnapping under two subsections of Tennessee’s kidnapping 

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statute but was ultimately convicted of only attempted kidnapping. 477 F.3d 

310, 315 (5th Cir. 2007). This court stated the indictment could not be used to 

determine whether the defendant committed a crime of violence because he 

had never pleaded guilty to the indictment. Id. at 314. The court, however,

was not confronted with the situation where the indictment could be used to 

show what subsection the defendant was actually convicted under.

Likewise, in United States v. Neri–Hernandes, although the court agreed 

with a general rule against using the indictment to determine which subsection 

a defendant pleaded guilty to, the court recognized that Turner was based on 

the reasoning that a district court should not “rely on the conduct set forth in 

the indictment” when determining what statute an individual was convicted 

under. 504 F.3d 587, 590 (5th Cir. 2007) (emphasis added). Notably, Neri–

Hernandes also recognizes that the implications of criminal documents are 

viewed in light of their legal significance in the originating jurisdiction. See 

id. at 591–93 (discussing the differences between an abstract of judgment 

under California law and a certificate of disposition under New York law). 

Lastly, in United States v. Bonilla, the court held that the defendant’s 

criminal information was unreliable to establish a crime of violence 

enhancement when the certificate of disposition: (1) did not refer back to a 

lesser offense in the information, and (2) did not provide the specific subsection 

under which the defendant was convicted. 524 F.3d 647, 652–53 (5th Cir. 

2008). Bonilla, however, must be understood in light of the statute and charge 

it examined, which are significantly different from the one at issue in this case. 

There the defendant had been charged with manslaughter, but the certificate 

of disposition noted he pleaded guilty to attempted manslaughter. Id. at 651. 

In contrast, Hernandez–Borjas’s judgment and Guilty Plea both explicitly 

reference a lesser offense. 

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The record in this case, viewed in light of the statute and Texas law, does 

not raise the same issues as the cases above. Hernandez–Borjas’s record shows 

he pleaded guilty to the lesser-included offense of the crime that he was 

charged for, and our analysis reveals this could only refer to the penalty degree, 

not the charge itself. 

This case is more analogous to United States v. Martinez–Vega because 

the judgment, indictment, and Texas law definitively demonstrate that there 

is only one lesser charge that Hernandez–Borjas could have pleaded guilty to. 

471 F.3d. 559 (5th Cir. 2006). The indictment in Martinez–Vega charged 

defendant with first-degree sexual assault, but the judgment reflected a 

conviction for second-degree sexual assault pursuant to a guilty plea to “the

lesser charge contained in the Indictment.” Id. at 562. In justifying its use of 

the indictment to narrow the conviction, the court distinguished Turner by 

emphasizing “the lesser charge” could only have one meaning. Id. at 563. 

Here, Hernandez–Borjas was indicted only under § 30.02(a)(1), which 

could be subject to two different penalty provisions—§ 30.02(c)(2) (seconddegree felony), or § 30.02(d) (first-degree felony). The judgment states that he 

pleaded guilty to “BURGLARY OF HABITATION, A LESSER INCLUDED 

OFFENSE,” and indicates he was convicted of a § 30.02(c)(2) second-degree 

felony. Just as in Martinez–Vega, the indictment is relevant to ascertain the 

meaning of “the lesser included offense.” The judgment provides that 

Hernandez–Borjas pleaded guilty to a lesser-included offense. And under 

Texas law, there is only one possible lesser-included offense of a first-degree 

burglary of a habitation under § 30.02(a)(1)—second-degree burglary of a 

habitation. See, e.g., United States v. Herrera, 647 F.3d 172, 177 (5th Cir. 2011) 

(considering Arkansas law to determine whether violations of certain 

subsections were considered lesser-included offenses of rape). 

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Specifically, in Texas, lesser-included offenses are defined by statute. 

See Tex. Code Crim. Proc. art. 37.09. Texas law provides an offense “will be a 

lesser-included offense where it is established by proof of the same or less than 

all the facts required to establish the commission of the offense charged.” State 

v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013) (internal quotations 

omitted). Thus, if a greater offense can be committed in more than one 

manner, “the manner alleged will determine the availability of lesser-included 

offenses.” Hall v. State, 225 S.W.3d 524, 531, 535 (Tex. Crim. App. 2007). The 

legal elements set forth in Hernandez–Borjas’s indictment alleged that he 

committed burglary of a habitation by entering a habitation, without consent, 

with the intent to commit the felony offense of aggravated assault. Subsection 

(a)(1) requires the element of intent, an element not required by subsection 

(a)(3). Likewise, subsection (a)(3) requires the element of an attempted or 

actual commission of an offense, an element not required by subsection (a)(1). 

Therefore, neither can be a lesser-included offense of the other. See, e.g.,

Guzman v. State, No. 2–05–096–CR, 2006 WL 743431, at *5 (Tex. App.—Fort 

Worth Mar. 23, 2006, no pet.) (mem. op., not designated for publication) 

(holding that “the offense of burglary as described in section 30.02(a)(1) is not 

a lesser included offense of the offense of burglary as described in section 

30.02(a)(3) . . . .”); see also Warren v. State, No. 05–12–00916–CR, 2013 WL 

3717802, at *3–4 (Tex. App.—Dallas July 12, 2013, no pet.) (mem. op., not 

designated for publication) (finding error where a defendant charged under § 

30.02(a)(3) received a lesser-included offense jury instruction for burglary 

under § 30.02(a)(1)); Bui v. State, 964 S.W.2d 335, 346 (Tex. App.—Texarkana 

1998, pet. ref’d) (same). 

Accordingly, the state law controlling Hernandez–Borjas’s conviction 

convincingly clarifies that the characterization in the judgment as “lesser 

included” could refer only to the degree of the penalty and not the charge itself. 

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In light of this context, which we recognize may apply only in narrow 

circumstances, we find Hernandez–Borjas was charged and pleaded guilty 

under § 30.02(a)(1), and therefore, the crime of violence enhancement applies. 

See United States v. Conde–Castaneda, 753 F.3d 172, 176 (5th Cir. 2014).

V.

In conclusion, our review of the charge in the indictment, the two 

relevant statutory provisions, the record, and the law governing the 

jurisdiction where the judgment issued shows that Hernandez–Borjas pleaded 

guilty to burglary of a habitation under § 30.02(a)(1), a crime of violence. 

Accordingly, we AFFIRM Hernandez–Borjas’s sentence. 

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