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United States v. Reyes-Ochoa

United States Court of Appeals, Fifth Circuit

June 30, 2017

JOSE DARWIN REYES-OCHOA, Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.

          LESLIE H. SOUTHWICK, Circuit Judge

         Defendant Jose Darwin Reyes-Ochoa appeals his 41-month within-Guidelines sentence imposed following his guilty-plea conviction and sentence for illegal reentry after deportation. He contends, for the first time on appeal, that the district court committed reversible plain error by imposing a 16-level "crime of violence" Guidelines enhancement based on his prior Virginia convictions for statutory burglary. In light of Mathis v. United States, 136 S.Ct. 2243 (2016), we agree the court plainly erred and exercise our discretion to VACATE Reyes-Ochoa's sentence and REMAND for resentencing.


         Jose Darwin Reyes-Ochoa, a citizen of El Salvador, pled guilty without a plea agreement to being an alien who knowingly and unlawfully entered the United States following deportation, in violation of 8 U.S.C. § 1326(a) and (b). Based on his prior Virginia convictions of statutory burglary, the probation officer applied a 16-level crime-of-violence ("COV") enhancement to Reyes-Ochoa's base offense of 8 under Section 2L1.2(b)(1)(A)(ii) of the 2014 version of the Guidelines.[1] The resulting Guidelines range was 41 to 51 months, and the district court sentenced Reyes-Ochoa to 41 months of imprisonment. Reyes-Ochoa timely appealed.

         This case was held pending the issuance of the mandate in United States v. Membreno-David, 650 F.App'x 194 (5th Cir. 2016), which was an appeal challenging an 8-level sentencing enhancement the defendant received for a prior Virginia burglary conviction under the same statute at issue here. That opinion was handed down on May 26, 2016, approximately one month before the Supreme Court's decision in Mathis. After filing an initial brief in accordance with Anders v. California, 386 U.S. 738 (1967), the Federal Public Defender's office filed a merits brief addressing the applicability of the COV enhancement Reyes-Ochoa received in light of Mathis.


         Because Reyes-Ochoa did not object to the sentencing enhancement in the district court, we review for plain error. United States v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). To establish plain error, Reyes-Ochoa must show (1) an error; (2) that was clear or obvious; and (3) that affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). Evaluating the plainness of an error requires us to consider whether the law is clear or obvious at the time of appellate review. Henderson v. United States, 133 S.Ct. 1121, 1124-25 (2013). If Reyes-Ochoa satisfies the first three prongs, we have the discretion to correct the error but only if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Puckett, 556 U.S. at 135 (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

         The parties' arguments are straightforward. Reyes-Ochoa asserts that based on Mathis and Virginia state law, the Virginia statute underlying his sentencing enhancement, Virginia Code Section 18.2-90, [2] is indivisible - precluding the use of the modified-categorical approach - and does not satisfy the categorical approach because the statute includes offenses broader than generic "burglary of a dwelling." Thus, he contends that his COV enhancement based on his prior Virginia burglary convictions was an error that is plain given Mathis's "clear directions on divisibility." Reyes-Ochoa also argues that the district court's error affected his substantial rights and that we should exercise our discretion to vacate and remand as the sentence seriously affects the fairness, integrity, or public reputation of judicial proceedings.

         The Government argues there is no error, plain or otherwise, because the Virginia statute is divisible and therefore subject to the modified-categorical approach. It predominantly relies on Membreno-David, where we determined Section 18.2-90 was "divisible as to how the entry is accomplished" and "divisible as to the target of the burglary[.]" See Membreno-David, 650 F.App'x at 196. The Government also finds support for its position in a 2011 Fourth Circuit decision, which held that the Virginia burglary statute was divisible and subject to the modified-categorical approach. See United States v. Foster, 662 F.3d 291, 293-94 (4th Cir. 2011).

         Recognizing that Foster predates both Descamps v. United States, 133 S.Ct. 2276 (2013), and Mathis, the Government asserts that the Fourth Circuit's decision remains good law even under the current analytical framework based on recent decisions from two Virginia federal district courts. See Blackwell v. United States, No. 4:10-CR-00012, 2016 WL 5849384, at *4-*5 (W.D. Va. Oct. 6, 2016); United States v. Major, 198 F.Supp.3d 558, 564-66 (E.D. Va. 2016), appeal docketed, No. 16-7279 (4th Cir. Sept. 21, 2016). Nevertheless, the Government notes that because another district court held differently - that the statute is indivisible post-Mathis - any error asserted by Reyes-Ochoa cannot be "clear or obvious." See United States v. Gambill, 214 F.Supp.3d 544, 548-552 (W.D. Va. 2016).

         Recently, the Fourth Circuit issued an opinion regarding the divisibility of Virginia Code Section 18.2-90, which we find particularly helpful to our analysis. See Castendet-Lewis v. Sessions, 855 F.3d 253, 260-64 (4th Cir. 2017). Before addressing that decision and the parties' arguments regarding plain error, we briefly set forth the Mathis framework on divisibility.

         I. Divisibility Under Mathis

         "The analytical method for determining whether a predicate offense merits COV sentencing-enhancement varies by whether the statute for the offense is divisible or indivisible." United States v. Mendez-Henriquez, 847 F.3d 214, 218 (5th Cir. 2017). Accordingly, we must first determine whether a statute lists multiple elements disjunctively, or enumerates various factual means of committing a single element. See Mathis, 136 S.Ct. at 2249. Where a statute "enumerates various factual means of committing a single element, " it is indivisible and the categorical approach ...

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