* Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. 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: * JulioAguilar-Rocha appeals the 78-month sentence imposed following his guilty plea conviction ofone 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 determinati on 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 ClerkNo. 07-51444

2 violence relied exclusively upon the characterization of his offense in the presentence report (PSR). Aguilar-Rocha failed toobject to the district court’s characterization ofhis prior conviction as a crime ofviolence 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. U nited 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. I d. (citation omitted). If these conditions are met, this court may exercise its discretion tocorrect the 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 ofthe offense tojustify its imposition ofan 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.” U nited Statesv 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 howthe enumerated offense is understood in its “‘ordinary, contemporary, [and] common’ meaning.” I d. 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.” U nited 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 ofa habitation under T EX
. P ENAL 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.” T E X
. P ENAL 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 ofthe enumerated offense of“burglary ofa 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 ofthese 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 ofconviction from Aguilar-Rocha’s prior Texas state conviction of burglary of a habitation. T he indictment specifically tracks the language of § 30.02(a)(1), and the judgment confirms that Aguilar-Roc ha 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 ofa habitation, which is the equivalent of the enumerated offense of “burglary ofa dwelling.” G arcia-Mendez, 420 F.3d at 456-57. Aguilar-Rocha therefore has failed to demonstrate that but for the distric t 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.