* 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.

-1- United States Court of Appeals

Fifth Circuit



## FILED

April 2, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40039

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ALEXANDER ROMERO RODRIGUEZ,

also known as Carlos Garcia,

Defendant-Appellant.

------------------------------------------------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-02-CR-426-1

--------------------------------------------------------------

Before SMITH, DeMOSS and STEWART, Circuit Judges.

PER CURIAM: *

Jose Alexander Romero Rodriguez appeals his conviction and sentence for being unlawfully

found in the United States after having been deported following a conviction for an aggravated

felony. Rodriguez was sentenced to 77 mont hs o f imprisonment and three years of supervised

release. He argues that the district court lacked jurisdiction to convict him because A pprendi v. New-2-

Jersey

, 530 U.S. 466 (2000), rendered 8 U.S.C. §§ 1326(b)(1) & (b)(2) unconstitutional. Rodriguez

concedes th at t his argument is foreclosed and raises it only to preserve possible Supreme Court

review. A

pprendi did not overrule Almendarez-Torres v. United States

, 523 U.S. 224 (1998)

. S ee

Apprendi

, 530 U.S. at 489-90; United States v. Dabeit

, 231 F.3d 979, 984 (5th Cir. 2000).

Accordingly, Rodriguez’s conviction is affirmed.

Rodriguez also contends that the district court erred by inc reasing his offense level by 16

levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2002). Rodriguez argues that his two prior New

Jersey state convictions for third-degree burglary do not qualify as crimes of violence. Because

Rodriguez did not raise this issue before the district court, it is reviewable only for plain error. S ee

United States v. Gracia-Cantu , 302 F.3d 308, 310 (5th Cir. 2002).

U.S.S.G . § 2L1.2(b)(1)(A)(ii) provides for a 16-level increase when a defendant was

previously deported after a conviction for a crime of violence. Burglary of a dwelling is one of the

offenses specifically enumerated as a “crime of viole nce” under this section. U.S.S.G. § 2L1.2,

comment. (n.1(B)(ii)(II)). In determining whether an offense meets the definit io n o f a crime of

violence, we do not look to the facts underlying the offense. Rather, we examine only the elements

of the offense. See United States v. Rodriguez-Rodriguez

, 323 F.3d 317, 318-19 (5th Cir. 2003).

One approach, if a statute contains disjunctive elements, is to look to the charging instrument. S ee

United States v. Calderon-Pena

, 339 F.3d 320, 327-29 (5th Cir. 2003), modified

, 357 F.3d 320, 327-

29 (5 th Cir. 2004), vacated for rehearing en banc

, 2004 U.S. App. LEXIS 4265 (5 t h Cir. Mar. 4,

2004). That methodology, however, would not change the result here, as we will explain.

Even if, arguendo

, we were to look to the charging instruments or judgments of conviction,

it is not clear, from those documents, that Rodriguez’s pri or convict ions were for burglary of a-3-

dwelling, so the district court clearly erred in applying the 16-level enhancement for prior conviction

of a crime of violence. Structure is defined as “any building, room, ship, vessel, car, vehicle or

airplane, and also means any place adapted for overnight accommodation of persons, or for carrying

on business therein, whether or not a person is actually present.” N.J. S T AT

. Ann. § 2C:18-1 (1997).

Thus, the language of the statute encompasses a broader range of conduct than that which is

enumerated as a crime of violence under U.S.S.G. § 2L1.2, and we must exa mine the charging

instruments.

Rodriguez was indicted for “unlawf ully enter[ing] the structure of Ricardo Cruz at 78

Deerfield Road, with the purpose to commit an offense therein.” Given the broad definition of

“structure” under New Jersey law, the indictment does not clearly refer to a dwelling.

With respect to the second burglary offense, Rodriguez waived indictment and agreed to be

charged on the accusation that he committed burglary. The charging instrument did not contain any

specific facts indicating that the burglary involved a dwelling.

Because it is not clear from the charging instruments or judgm ent s of conviction that

Rodriguez’s prior convictions were for burglary of a dwelling, the district court clearly erred in

applying the 16-level enhanceme nt fo r prior conviction of a crime of violence. S ee U.S.S.G.

§ 2L1.2(b)(1)(A). Rodriguez’s substantial rights were affected because this increased the applicable

guidelines sentencing range, and he has established plain error. S ee United States v. Alarcon , 261

F.3d 416, 423 (5th Cir. 2001). Accordingly, we vacate his sentence and remand to the district court

for resentencing in accordance with this opinion.

CONV ICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.