IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20097

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ELI AVILES PANIAGUA, also known as Eli Paniagua Aviles, also known as

Eli P. Aviles, also known as Eli Aviles-Paniagua, 

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

4:10-CR-00488

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Eli Aviles Paniagua (Aviles) pled guilty to being illegally present in the

United States following deportation subsequent to a felony conviction, 8 U.S.C.

§ 1326(a), (b)(1). On appeal, Aviles challenges the district court’s sentence

enhancement under U.S.S.G. § 2L1.2(b)(1)(C), based on Aviles’s previous

conviction of an aggravated felony. We AFFIRM. The Government’s Motion to

Supplement the Appellate Record is DENIED AS MOOT.

United States Court of Appeals

Fifth Circuit

F I L E D

July 11, 2012

Lyle W. Cayce

Clerk

 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.

Case: 11-20097 Document: 00511917460 Page: 1 Date Filed: 07/11/2012
No. 11-20097

I

Aviles was indicted on one count of being illegally present in the United

States following deportation subsequent to a felony conviction. At his

rearraignment, Aviles admitted under oath that he previously had been

convicted of engaging in organized criminal activity involving burglary of a

motor vehicle, a felony offense. See TEX. PENAL CODE § 71.02(a)(1). The

exchange between the court and Aviles was as follows:

THE COURT: So you were convicted of the offense in

Hays County, Texas. What town is the

county seat of Hays County where the

courthouse is located. Do you remember?

THE DEFENDANT: San Marcos.

THE COURT: You were convicted of engaging in

organized criminal activity, burglary of a

vehicle there?

THE DEFENDANT: Yes.

THE COURT: And that was in 2004. And then you had a

probated sentence that was revoked, and

you were put in prison for two years in

June of 2005?

THE DEFENDANT: Yes.

THE COURT: And then you were deported to Mexico in

July of 2007?

THE DEFENDANT: Yes.

THE COURT: And then you reentered the United States

sometime after that?

THE DEFENDANT: In 2008.

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Based on Aviles’s prior conviction, the PSR recommended that his base

offense level of eight be enhanced by eight levels under U.S.S.G. § 2L1.2(b)(1)(C). 

Aviles objected to the recommended enhancement. He argued that his prior

conviction did not meet the definition of “aggravated felony” under §

2L1.2(b)(1)(C) because the underlying offense of burglary of a motor vehicle was

a misdemeanor. He also contended that the gravamen of the offense is not the

misdemeanor burglary butthe unlawful conspiracy or combination, which, under

the statute, has many prohibited objectives, not all of which are violent. Finally,

Aviles argued that burglary of a motor vehicle is not within the generic

definition of “burglary” encompassed by the Immigration and Nationality Act

(INA) and the Sentencing Guidelines. 

The district court overruled his objections and adopted the PSR,

concluding that Aviles’s conviction was an aggravated felony because it fell

within the definition of a “crime of violence” under Section 1101(a)(43)(F) of the

INA. After a three-level reduction for acceptance of responsibility, Aviles’s total

offense level was thirteen. Because he also had several previous Texas burglary

convictions, his criminal history category was VI, resulting in an advisory range

of 33 to 41 months’ imprisonment. The district court sentenced him to 41

months in prison, followed by a three-year term of supervised release. Aviles

filed a timely notice of appeal.

II

We review a challenge to the application of the sentencing guidelines de

novo, accepting the district court’s factual findings unless clearly erroneous. 

United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995). 

“Defendants-appellants’ sentences must be affirmed unless they were imposed

in violation of law or were based upon an erroneous application of the

Sentencing Guidelines.” United States v. Chapa-Garza, 243 F.3d 921, 924 (5th

Cir. 2001). We may affirm on any grounds supported by the record, even if not

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relied on by the district court. United States v. Gonzalez, 592 F.3d 675, 681 (5th

Cir. 2009).

This court generally uses a categorical approach to determine whether an

offense qualifies as an aggravated felony under § 2L1.2. Chapa-Garza, 243 F.3d

at 924. Under the categorical approach, the court “looks to the elements of a

prior offense, rather than to the facts underlying the conviction.” United States

v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005) (citing Taylor v. United States,

495 U.S. 575, 602 (1990)). However, in a “narrow range of cases,” where “the

statute of conviction contains a series of disjunctive elements,” the district court

may employ a “modified categorical approach” and go beyond the elements of the

offense to determine whether the defendant was convicted of an aggravated

felony. United States v. Gonzalez-Terrazas, 529 F.3d 293, 297 (5th Cir. 2008). 

In these cases, we “may consider, in addition to the language of the statute, the

charging document, written plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defendant has assented.” 

Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006) (internal quotation

marks omitted). If the documents we consider do not establish that the

petitioner was “necessarily convicted of an aggravated felony,” then we must find

that the government has not met its burden. Id. 

This case falls into that “narrow range of cases” where the modified

categorical approach is appropriate, because the statute of conviction, Texas

Penal Code § 71.02(a)(1), contains a number of disjunctive elements:

(a) A person [engages in organized criminal activity] if, with the

intent to establish, maintain, or participate in a combination or in

the profits of a combination or as a member of a criminal street

gang, the person commits or conspires to commit one or more of the

following: (1) . . . burglary of a motor vehicle . . . . 

Id. For example, a defendant who possessed the necessary intent may be

convicted under § 71.02(a)(1) for committing burglary of a motor vehicle or for

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merely conspiring to do so. See, e.g., Renfro v. State, 827 S.W.2d 532, 534 (Tex.

App.–Houston [1st Dist.] 1992, pet. ref’d) (“[T]o be guilty of the offense of

organized criminal activity, a defendant must commit or conspire to commit one

of the enumerated crimes, and do so with the specific intent of participating in

a group of at least [three] persons.”). 

However, the list of documents that, under the modified categorical

approach, normally illuminate a defendant’s prior conviction is of little help in

this case: Aviles pled guilty without a written plea agreement; the

rearraignment transcript, included in relevant portion above, makes only bare

reference to the offense; and the indictment is not in the record before this court. 

Thus, with no facts in the record underlying Aviles’s conviction except for the

district court’s indication that the conviction involved burglary of a motor

vehicle, we are left to decide whether Aviles was “necessarily convicted of an

aggravated felony” based solely on the elements of the prior offense. See LarinUlloa, 462 F.3d at 464. In other words, we must determine whether the “least

culpable act” that violates the statute constitutes an aggravated felony. See

United States v. Reyes-Mendoza, 665 F.3d 165, 166 (5th Cir. 2011). 

III

Section 2L1.2(b)(1)(C) of the Sentencing Guidelines provide that “[i]f the

defendant previously was deported, or unlawfully remained in the United States,

after . . . a conviction for an aggravated felony,” his offense level should be

increased by eight levels. U.S.S.G. § 2L1.2(b)(1)(C). Comment 3(A) states that

“[f]or purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given

that term in 8 U.S.C. 1101(a)(43).” § 2L1.2 cmt. n.3(A). Section 1101(a)(43)

includes twenty-one different subsections under which an offense may qualify

as an aggravated felony. See § 1101(a)(43)(A)-(U). The district court concluded

that Aviles’s prior conviction was an aggravated felony under subsection (F),

which provides that an aggravated felony includes “a crime of violence (as

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defined in section 16 of Title 18, but not including a purely political offense) for

which the term of imprisonment [is] at least one year[.]” § 1101(a)(43)(F). 

Section 16 of Title 18 defines a “crime of violence” as:

(a) an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another, or

(b) any other offense that is a felony and that, by its nature, involves

a substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.

18 U.S.C. § 16. 

The statute of prior conviction, § 71.02(a)(1), clearly does not have “as an

element the use, attempted use, or threatened use of physical force” and does not

qualify as a crime of violence under § 16(a). Aviles notes that, in 1994, the Texas

legislature reclassified burglary of a motor vehicle, TEX. PENAL CODE § 30.04,

from a felony to a Class A misdemeanor. See Rodriguez-Guzman, 56 F.3d at 21. 

Aviles argues this removes his conviction from § 16(b)’s definition as well. 

However, §71.02(a)(1), not § 30.04, is at issue in this case, and engaging in

organized criminal activity involving burglary of a motor vehicle under §

71.02(a)(1), as Aviles concedes, is still a felony. See TEX.PENAL CODE § 71.02(b). 

The question remains whether engaging in organized criminal activity

involving burglary of a motor vehicle under § 71.02(a)(1) carries the risk

described in § 16(b). Where such an offense is based on the actual commission

of burglary of a motor vehicle, it clearly does. In Rodriguez-Guzman, we

concluded that a defendant’s pre-1994 conviction for burglary of a motor vehicle

was a crime of violence under § 16(b), reasoning as follows:

By its very terms, subsection (b) requires only a substantial risk

that physical force may be used during the commission of the crime. 

A substantial risk that an event may occur does not mean that it

must occur in every instance; rather, a substantial risk requires only

a strong probability that the event, in this case the application of

physical force during the commission of the crime, will occur.

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...

As the facts surrounding Rodriguez’s burglary convictions amply

demonstrate, the burglary of a nonresidential building or of a

vehicle often involves the application of destructive physical force to

the property of another.

56 F.3d at 20. 

Although, in this case, we do not have in the record the facts surrounding

Aviles’s prior conviction, and although Rodriguez-Guzman’s conclusion has been

undermined by Texas’s reclassification of burglary of a vehicle, our statement

that “burglary of a . . . vehicle often involves the application of destructive

physical force to the property of another” remains true. Moreover, a defendant’s

possession of the intent described in § 71.02(a) does not lessen that risk. In fact,

as the Government argues, the risk of physical force being used against the

property of another may even be increased where a burglar also possesses “the

intent to establish, maintain, or participate in a combination or in the profits of

a combination or as a member of a criminal street gang.” § 71.02(a).

As we noted above, however, a defendant may also be convicted under §

71.02(a)(1) for “conspir[ing] to commit . . . burglary of a motor vehicle.” Aviles

argues that a conspiracy offense does not carry the same risk as the underlying

offense, and that engaging in a conspiracy, the “least culpable act” under the

statute of conviction, is not a crime of violence. We disagree. In United States

v. Gore, 636 F.3d 728 (5th Cir. 2011), we recently held that the Texas offense of

conspiracy to commit aggravated robbery is a “violent felony” under the Armed

Career Criminal Act (ACCA). The definition of a “violent felony” under the

ACCA is similar to the “crime of violence” definition under § 16: 

[T]he term “violent felony” means any crime punishable by

imprisonment for a term exceeding one year . . . that -- 

(i) has as an element the use, attempted use, or threatened use of

physical force against the person of another; or 

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(ii) is burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of

physical injury to another[.]

18 U.S.C. § 924(e)(2)(B). We reasoned in Gore that, because Texas law “requires

‘an overt act in pursuance of the agreement’ as an element of a conspiracy

conviction”, the defendant could not have violated the conspiracy statute at issue

without committing a “violent felony.” See Gore, 636 F.3d at 736. 

The same rationale applies in this case. The Texas Penal Code provides

that:

(a) A person commits criminal conspiracy if, with intent that a

felony be committed:

(1) he agrees with one or more persons that they or one or more of

them engage in conduct that would constitute the offense; and

(2) he or one or more of them performs an overt act in pursuance of

the agreement.

TEX. PENAL CODE § 15.02(a). This definition mirrors the Model Penal Code’s

definition of “conspiracy,” which also requires “an overt act in pursuance of [the]

conspiracy.” MODEL PENAL CODE § 5.03(5). While Aviles’s insinuation that the

agreement element of a conspiracy will rarely involve the use of physical force

may have some merit, a conspiracy in Texas is not complete until a conspirator

commits an “overt act.” This overt act need not be the first act in a burglary, but

there is a substantial risk that it will be. Accordingly, an overt act in

furtherance of a conspiracy to commit burglary of a motor vehicle “by its nature,

involves a substantial risk that physical force against the . . . property of another

may be used in the course of committing the offense.” § 16(b). Furthermore, the

risk associated with the commission of an “overt act” in furtherance of the

conspiracy, like that associated with the burglary itself, does not decrease

because a defendant enters into the conspiracy with the intent to engage in

organized criminal activity described in § 71.02(a). 

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Finally, it does not matter in this case that some of the prohibited

objectives in § 71.02(a)(1), like forgery, may not be crimes of violence. As

discussed above, the modified categorical approach permits us to examine the

record to determine which elements of the statute formed the basis for

conviction. While the record does not indicate which elements of § 71.02(a)

formed the basis for conviction, the rearraignment transcript establishes that

the conviction was based on burglary of a motor vehicle under § 71.02(a)(1).

IV

In sum, an offense under § 71.02(a) for engaging in organized criminal

activity involving burglary of a motor vehicle requires either commission of a

burglary, or conspiracy to commit burglary, and in both cases the offense “by its

nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” §

16(b). Section 71.02(a)’s requirement that the defendant also possess “the intent

to establish, maintain, or participate in a combination or in the profits of a

combination or as a member of a criminal street gang” does not diminish this

risk.

Accordingly, we AFFIRM the judgment of the district court. The

Government’s Motion to Supplement the Appellate Record is DENIED AS

MOOT. 

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