(D.Ct. No. 1:12-CR-00112-RBJ-1) (D. Colo.)
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and PHILLIPS, Circuit Judge.
ORDER AND JUDGMENT[*]
WADE BRORBY United States Circuit Judge
Appellant Elias Armendariz-Perez pled guilty to one count of being found in the United States after deportation following a felony conviction. He now appeals his forty-month sentence, contending the district court improperly characterized his prior Texas conviction for burglary of a habitation as a crime of violence for the purpose of applying a sixteen-level enhancement pursuant to United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") § 2L1.2. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm.
On February 28, 2012, immigration authorities discovered Mr. Armendariz-Perez illegally in the United States and arrested him in Colorado. On June 11, 2012, Mr. Armendariz-Perez pled guilty to illegal reentry after deportation subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). Prior to his guilty plea, Mr. Armendariz-Perez entered into a fast-track plea agreement with the government and filed a statement in advance of that plea. In the agreement, Mr. Armendariz-Perez stipulated he previously received a felony conviction in Texas for "burglary of a habitation" and seven years probation. In estimating the Guidelines computations and indicating some disagreement may arise as indicated, the parties stated: "[t]he following specific offense characteristics apply: There is a 12-level increase under § 2L1.2(b)(1)(A) because [Mr. Armendariz-Perez] was previously removed following a conviction for a felony that is a crime of violence." The parties further agreed the government would file a motion for a four-level downward departure based on the early disposition (or fast-track) Guidelines provisions under U.S.S.G. § 5K3.1 unless, following a presentence investigation, "it is determined [Mr. Armendariz-Perez] has a previous conviction for a 'crime of violence, '" as defined in U.S.S.G. § 2L1.2 application note 1, in which case it would only move for a two-level reduction. Under that definition, a "crime of violence" includes federal, state, or local "burglary of a dwelling, " see U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), and we define "dwelling" as including "any enclosed space that is used or intended for use as a human habitation." United States v. Rivera-Oros, 590 F.3d 1123, 1132 (10th Cir. 2009) (internal quotation marks omitted). In addition, Mr. Armendariz-Perez agreed he could not "contest the government's determination" of whether his prior crime constituted a crime of violence for the purpose of moving for a downward departure under § 5K3.1. At the plea hearing, the district court accepted Mr. Armendariz-Perez's guilty plea, asking him multiple questions concerning his plea agreement, including whether he understood the charges against him and how the Guidelines may be applied in his case, to which he affirmatively answered.
Thereafter, a federal probation officer prepared a presentence report, recommending a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for a "crime of violence" based on Mr. Armendariz-Perez's prior Texas conviction for burglary of a habitation under Texas Penal Code § 30.02. Specifically, the presentence report noted that on or about September 5, 1998, Mr. Armendariz-Perez intentionally or knowingly entered a habitation with the intent to commit theft without the effective consent of the owner, as indicated in the original indictment to which he pled guilty. The probation officer then calculated Mr. Armendariz-Perez's total offense level at 21 and his criminal history category at III, for a resulting advisory Guidelines range of forty-six to fifty-seven months in prison. Thereafter, as referenced in the agreement, the government filed for a two-level downward departure in his offense level, under U.S.S.G. § 5K3.1, for the purpose of reducing the Guidelines range to thirty-seven to forty-six months imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
Mr. Armendariz-Perez did not file objections to either the presentence report or the government's § 5K3.1 motion. At the sentencing hearing, his counsel stated Mr. Armendariz-Perez did not "have any objections or corrections to the presentence report" or any objection to the government's motion for a two-level departure, which the government pointed out was "based on the fact that the defendant's conviction for burglary constitutes a crime of violence." The district court granted the departure, resulting in an advisory Guidelines range of thirty-seven to forty-six months, and the government requested a sentence at the low end of the Guidelines range at thirty-seven months. While discussing the sentencing factors in 18 U.S.C. § 3553(a), the district court noted, in part, Mr. Armendariz-Perez "broke into a gentleman's house, the circumstances are unknown to the court, " and that "[h]e was convicted of burglary of a habitation which is considered by the probation office and the law to be a crime of violence." After considering the requisite sentencing factors, the district court sentenced Mr. Armendariz-Perez to forty months imprisonment. Mr. Armendariz-Perez did not make a contemporaneous objection to the district court's characterization of his prior conviction or the sentence it imposed.
For the first time on appeal, Mr. Armendariz-Perez asserts his prior conviction for burglary of a habitation is not a "crime of violence" because a burglary committed under Texas Penal Code § 30.02 may include structures appurtenant to a residence or dwelling, which is broader than U.S.S.G. § 2L1.2(b)(1)(A)(ii) and its commentary, which require burglary of a dwelling in order to qualify as a crime of violence. See § 2L1.2(b)(1)(A)(ii) cmt. n. 1(B)(iii). Because he did not raise this argument before the district court, Mr. Armendariz-Perez contends our review is for plain error. In discussing plain error, he argues the district court committed an error in failing to conduct a categorical approach and determine the statute is ambiguous because it defines burglary as including both a dwelling and structures appurtenant to it. He argues it then should have applied a modified categorical approach by relying on certain judicial records to decide if the offense involved the burglary of a dwelling. Because a possibility exists he only burglarized an appurtenant structure, Mr. Armendariz-Perez contends the district court committed an error that was plain by characterizing his prior offense as a crime of violence. In making this argument, Mr. Armendariz-Perez discusses the burglary statutes of several states, pointing out Texas is in the minority in defining "burglary" to include outbuildings, and further suggests our prior precedent requires a modified categorical approach.
In support of applying a modified categorical approach, Mr. Armendariz- Perez filed an unopposed motion to supplement the appellate record with judicial records from his prior conviction, which we granted. He filed such supplemental documents prior to the Supreme Court's issuance of Descamps, contending these documents will show that the state of Texas charged him with general burglary of a habitation without any further specification as to whether it involved burglary of a dwelling or an appurtenant structure. As a result, he argued, both the third and fourth prongs of our plain error review are met because he can show a reasonable probability of a different outcome absent the district court's plain error in treating his conviction as a crime of violence and a strong possibility the district court would have sentenced him at a lower Guidelines range without such an error.
Since Mr. Armendariz-Perez's supplemental motion, the Supreme Court, in Descamps, explained that the "modified categorical approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." 133 S.Ct. at 2283. However, it further explained the modified categorical approach does not apply if "state law defines burglary not alternatively, but only more broadly than the generic offense." Id. Based on such supplemental authority, Mr. Armendariz-Perez now argues the modified categorical approach does not apply, as the Texas statute at issue is not divisible by setting out one or more elements of the offense in the alternative, but is written more broadly, and, instead, only a categorical approach applies, under which he must prevail.
In countering Mr. Armendariz-Perez's claims, the government asserts he invited the error he now raises because he "urged the district court to find that his prior conviction qualifies as a crime of violence" in his plea agreement and further waived the issue by not objecting to the facts in the presentence report, including that he committed a crime of violence for burglary of a dwelling. Alternatively, it contends that if plain error analysis applies, his argument must fail because he now has the burden of proof to show his conviction was not a crime of violence. It suggests the documents he provided do not meet this burden, and therefore, he fails to establish a different outcome in the district court proceeding or the possibility of a lesser sentence.
We begin by explaining an "invited error" "prevents a party from inducing action by a court and later seeking reversal on the ground that the requested action was in error." United States v. Lopez-Medina, 596 F.3d 716, 733 n.10 (10th Cir. 2010) (internal quotation marks omitted). "Our prior cases make clear that waiver bars a defendant from appealing an invited error." United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007). "[W]aiver is the intentional relinquishment or abandonment of a known right" and is "accomplished by intent" rather than neglect.Id. (internal quotation marks omitted). In addition, we have held that once a defendant's guilty plea is entered and accepted by the court, he is bound by the ...