[ DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 1 3

- 14836

________________________ D. C. Docket No. 5:13

- cr - 00039

- ACC

- PRL

- 1 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus RAFAEL DIAZ

- MORALES, a.k.a. Rafael Diaz, Defendant

- Appellant.

________________________ Appeal from the United States District C ourt for the Middle District of Florida

________________________ ( November 22, 2016 ) ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before MARTIN, JULIE CARNES, and BLACK, Circuit Judges. PER CURIAM : Three years ago Rafael Diaz

- Morales was sentenced to 57 months in prison Case: 13-14836 Date Filed: 11/22/2016 Page: 1 of 62 after he pleaded guilty to illegal re

- entry into the United States
. That sentence was set using United States Sentencing Guideline § 2L1.2, which can increase the sentencing range for defendants who were previously convicted of “burglary of a dwelling.” USSG § 2L1.2 cmt. n.1(B)(iii). The d istrict court used § 2L1 .2 to increase Diaz

- Morales’s sentence because he had previously been convicted of burglary under Florida law. With that burglary conviction, Diaz

- Morales’s sentencing range was 57 to 71 months in prison. Without it , his range would have been 24 to 30 months
. Because Diaz

- Morales has been incar cerated since his arrest in May 2013 , he has now served 42 months
. This is a continuation of Diaz

- Morales ’s direct appeal. When his app eal began over three years ago, he argued that his Florida burglary conviction was not for “burglary of a dwelling” because Florida law defines burglary to include illegal entry into areas outside a dwelling and because the Florida burglary statute was not divisible. When a statute is not divisible, the d istrict court is not permitted to use the modified categorical approach to determine whether the defendant was actually convicted of burglary of a dwelling. See United States v. Diaz

- Morales , 595 F. App’x 932, 933

– 35 (11th Cir. 2014) . But because Diaz

- Morales did not object to the d istrict court ’s use of his burglary conviction to enhance his guidelines sentencing range, we could only review his argument fo r plain error on appeal. Id. at 933. At that time, there was no precedent from this Court or the Supreme Court

Case: 13-14836 Date Filed: 11/22/2016 Page: 2 of 63 holding that the Florida burglary statute was not divisible. This panel therefore concluded that the d istrict court did not plainly err and we upheld Diaz

- Morales’s sentence . Id. at 935

– 36
. Within a month of our ruling, Diaz

- Morales filed a petition for rehearing. W e denied that petition a little over six months later
. Diaz

- Morales then filed a petition for certiorari in the Supreme Court. The Supreme Court granted that petition on June 28, 201 6. Diaz

- Morales v. United States , 576 U.S. ___, 136 S. Ct. 2540 (2016). T he Court vacated our opinion and remanded in light of Mathis v. United States , 576 U.S. ___ , 136 S. Ct. 2243 (2016). Id. at 2541. On remand, and with the benefit of this Court’s decision in United States v. Esprit , ___ F.3d ___, No. 14

- 13066 (11th Cir. Nov. 21, 2016), w e agree that Diaz

- Morales was not convicted of “burglary of a dwelling ” as that term is used in federal law. We therefore vacate Diaz

- Morale s’s sentence and remand to the d istrict court with instructions to resentence him on an expedited basis. I. W e ordinarily review de novo whether a prior state conviction is a “crime of violence” under USSG § 2L1.2 ’s list of offenses
. See United States v. Estrella , 758 F.3d 1239, 1244 (11th Cir. 2014). “T o determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of convictio n with the elements of the ‘generic’ version of the listed offense

— i.e. , the offense as

Case: 13-14836 Date Filed: 11/22/2016 Page: 3 of 64 commonly understood.” Mathis , 136 S. Ct. at 2247; see also id. at 2251 n.2 (noting that this same approach applies “ outside the ACCA context ”); Estrella , 606 F.3d at 1 244 (applying Descamps v. United States , 520 U.S. ___, 133 S. Ct. 2276 (2013) , to USSG § 2L1.2); United States v. Palomino Garcia , 606 F.3d 1317, 1326 (11th Cir. 2010) ( applying the Supreme Court’s pre

- Descamps “categorical approach” cases to USSG § 2L1.2). Courts must “focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” Mathis , 136 S. Ct. at 2248. If the elements of the state offense are either “the same as, or narrower than, those of the generic offense,” then the conviction meets the § 2L1.2 definition. Id. This is known as the “categorical approach.” Id. However, the issue in Diaz

- Morales’s case has now been squarely decided by th is Court. See Esprit , No. 14

- 13066. As recognized in Esprit , the Florida burglary statute’s definition of “structure” is indivisible, and is broader than “burglary of a dwelling” as that term is used in federal law. Id. at 11

– 12. Therefore , “no convict ion under the statute can be assumed” to fit the Gu idelines enhancement that Diaz

- Morales received. See United States v. Lockett , 810 F.3 d 1262, 1266 (11th Cit. 2016); see also Esprit , No. 14

- 13066, at 11. Florida burglary is not categorically a “burglar y of a dwelling ” as that term is used in federal law, including the Guidelines provision under which Diaz

- Morales was sentenced.

Case: 13-14836 Date Filed: 11/22/2016 Page: 4 of 65 II. This brings us to plain error, which was the reason we upheld Diaz

Morales’s sentence before the Supreme Court vacated our earlier decision and remanded this case to us . Plain error is (1) error (2) that is plain and (3) that affects a substantial right. United States v. Frazier , 605 F.3d 1271, 1282 (11th Cir. 2010). Our job has now been made easier by this Cour t’s decision and binding precedent in Esprit
. We have long recognized that “an intervening decision of this Court or the Supreme Court squarely on point may make an error plain.” United States v. Pielago , 135 F.3d 703, 711 (11th Cir. 1998). We conclude that this plain error affected Diaz

- Morales’s substantial rights. T he d istrict court incorrectly applied USSG § 2L1.2 to increase Diaz

- Morales’s sentencing range based on his Florida burglary conviction . With this mistaken enhancement , Diaz

- Morales’s sentencing range was 57 to 71 months in prison. Without it, his sentencing range would have been 24 to 30 months. And in sentencing Diaz

- Morales, the d istrict court said that it felt “that a guideline sentence [was] appropriate,” and perhaps e ven more telling, that a “low end of the guideline [was] appropriate.” We therefore conclude that there is a reasonable probability that Diaz

- Morales would have received a lower sentence had he been sentenced with the correct guidelines range, and he has therefore shown that his substantial rights were affected by this error. See Molina

- Martinez v. United

Case: 13-14836 Date Filed: 11/22/2016 Page: 5 of 66 States , 578 U.S. ___, 136 S. Ct. 1338, 1347 ( 2016) (“In most cases a defendant who has shown that the district court mistakenly deemed applicable an inc orrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome .”). Under these circumstances, Diaz

- Morales has shown plain error that
su bstantially affected his rights and seriously affected the fairness, integrity, and public reputation of judicial proceedings. See Frazier , 605 F.3d at 1282

– 83 ; United States v. Ben nett , 472 F.3d 825, 834 (11th Cir. 2006) (per curiam)
. Diaz

Morales is ent itled to relief from this Cour t. III. Esprit make s plain that Florida’s burglary offense is neither generic nor divisible. That means a Florida burglary conviction is never “burglary of a dwelling” as that term is defined by federal law
. We must therefore vacate Diaz

Morales’s senten ce. We are mindful that Diaz

- Morales has now ser ved more than the full term called for if he had received a within

- guide line sentence in a range that did not include the § 2L1.2 enhancement, and that he will be eligible for immediate release if the district court decides on remand to impose a sentence within the guidelines range. Therefore, the d istrict court is instructed to re sentence Diaz

- Morales on an expedited basis
. VACATED AND REMANDED. Case: 13-14836 Date Filed: 11/22/2016 Page: 6 of 6