from the United States District Court for the Southern
District of Texas
DAVIS, JONES, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, Circuit Judge
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.
AND PROCEDURAL BACKGROUND
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. 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.
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.
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)).
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,  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.
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).
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).
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.
Divisibility Under Mathis
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 ...