* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51444

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JULIO AGUILAR-ROCHA

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-1036-ALL

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

PER CURIAM:*

Julio Aguilar-Rocha appeals the 78-month sentence imposed following his

guilty plea conviction of one count of illegal reentry. Aguilar-Rocha argues that

the district court improperly enhanced his offense level pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based on its erroneous determination that his prior Texas

conviction of burglary of a habitation was a crime of violence as defined by the

Sentencing Guidelines. Aguilar-Rocha specifically contends that the district

court erred because its conclusion that his prior state conviction was a crime of

United States Court of Appeals

Fifth Circuit

F I L E D

January 16, 2009

Charles R. Fulbruge III

Clerk
No. 07-51444

2

violence relied exclusively upon the characterization of his offense in the

presentence report (PSR).

Aguilar-Rocha failed to object to the district court’s characterization of his

prior conviction as a crime of violence and did not challenge the imposition ofthe

16-level enhancement under § 2L1.2(b)(1)(A)(ii). Accordingly, this court’s review

is for plain error. United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.

2005). To obtain relief under the plain error standard, Aguilar Rocha must

establish that (1) there was an error; (2) the error was clear and obvious; and

(3) the error affected his substantial rights. Id. (citation omitted). If these

conditions are met,this court may exercise its discretion to correctthe error only

if it seriously affects the fairness, integrity, or public reputation of the judicial

proceedings. Id. (quotation marks and citation omitted). 

The record does not indicate that the Government produced a judgment

of conviction or other adjudicative records at sentencing to establish that

Aguilar-Rocha’s prior state court conviction warranted a 16-level enhancement.

Moreover, there is no evidence that the district court reviewed evidence other

than the PSR in determining that Aguilar-Rocha’s prior offense was a crime of

violence. Thus, the record suggests that the district court relied solely upon the

PSR’s characterization of the offense to justify its imposition of an enhancement

under § 2L1.2. The court’s exclusive dependence on the PSR constitutes an error

that was clear and obvious. See Garza-Lopez, 410 F.3d at 275.

However, Aguilar-Rocha has failed to show that the error affected his

substantial rights. When determining whether a state conviction constitutes a

specifically enumerated offense for purpose an enhancement under § 2L1.2, we

use a “common sense approach.” United States v Izaguirre-Flores, 405 F.3d 270,
No. 07-51444

3

274-75 (5th Cir. 2005). Under this approach, we determine whether a violation

of the underlying state statute constitutes an enumerated offense based upon

how the enumerated offense is understood in its “‘ordinary, contemporary, [and]

common’ meaning.” Id. at 275. If it is determined that the statute of conviction

provides for various means of commission, the court may “examine certain

adjudicative records to determine whether the prior conviction qualifies as an

enumerated offense.” United States v. Murillo-Lopez, 444 F.3d 337, 339-40 (5th

Cir. 2006). These records include the charging document, the plea agreement,

the plea colloquy transcript, and any explicit findings made by the trial judge to

which the defendant assented. Id. at 340. 

In the instant case, the parties agree that Aguilar-Rocha was convicted of

burglary of a habitation under TEX. PENAL CODE § 30.02(a). This statute states

that a person commits the offense of burglary of a habitation if, without the

effective consent of the owner, the person “enters a habitation, or a building (or

any portion of a building) not then open to the public, with intent to commit a

felony, theft, or an assault.” TEX. PENAL CODE § 30.02(a)(1). The statute

alternatively provides that a person commits burglary of a habitation if he

“enters a building or habitation and commits or attempts to commit a felony,

theft, or an assault” Id. at § 30.02(a)(3). This court has determined that a

conviction under § 30.02(a)(1) is equivalent to the enumerated offense “burglary

of a dwelling.” See United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th

Cir. 2005). However, this court has held that a conviction under § 30.02(a)(3) is

not the equivalent of the enumerated offense of “burglary of a dwelling” because

the provision does not require entry with an intent to commit a crime. See

United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008).
No. 07-51444

4

The Government on appeal has provided copies of the indictment and

judgment of conviction related to Aguilar-Rocha’s prior state conviction. We

construe the Government’s submission of these adjudicative records as a motion

to supplement the appellate record with these documents. Aguilar-Rocha has

not objected to the inclusion ofthe documents, nor is there any dispute about the

documents’ authenticity. Accordingly, we grant the Government’s motion to

supplement the record with copies of the indictment and judgment of conviction

from Aguilar-Rocha’s prior Texas state conviction of burglary of a habitation.

The indictment specifically tracks the language of § 30.02(a)(1), and the

judgment confirms that Aguilar-Rocha pleaded guilty to the offense as it was

alleged in the indictment. Thus, the record establishes that Aguilar-Rocha

pleaded guilty to the offense of burglary of a habitation, which is the equivalent

of the enumerated offense of “burglary of a dwelling.” Garcia-Mendez, 420 F.3d

at 456-57. Aguilar-Rocha therefore has failed to demonstrate that but for the

district court’s error in relying solely on the PSR, the district court would not

have imposed an enhancement under § 2L1.2(b)(1)(A)(ii). Accordingly, he has

not demonstrated reversible plain error. Id. at 456. 

The judgment of the district court is AFFIRMED. The Government’s

motion to supplement the record is GRANTED.