In U.S. vs. Reyes-Ochoa, No. 15-41270,  the Fifth Circuit held that a sixteen-level “crime of violence” enhancement for a Virginia Statutory Burglary was plain error.

Reyes-Ochoa was a citizen of El Salvador.  He pled guilty to being an alien who knowingly and unlawfully entered the US following deportation.  The prior Virginia Statutory Burglary meant that Reyes-Ochoa’s base offense level had 16 points added to it.  That led to a guideline range of 41-51 months.  Reyes-Ochoa was sentenced to 41 months.

Reyes-Ochoa asserted that his burglary case, which was prosecuted under VA Code 18.2-90 is indivisible and doesn’t satisfy the categorical approach because the statute includes offenses broader than generic “burglary oaf a dwelling.”  Reyes-Ochoa didn’t object to the sentencing enhancement in the district court meaning that the appellate court used a plain error standard.

The Court explained Mathis, and then looked at the language of the statute of VA burglary, which is:

“If any person in the nighttime enters without breaking or in the daytime breaks and enters or enters and conceals himself in a dwelling house or an adjoining, occupied outhouse or in the nighttime enters without breaking or at any time breaks and enters or enters and conceals himself in any building permanently affixed to realty, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation, with intent to commit murder, rape, robbery or arson … he shall be deemed guilty of statutory burglary….”

The Fifth Circuit held that the Fourth Circuit (which is where Virginia is) made the right call in  Castendet-Lewis, 855 F.3d at 255–56 where they held that Virginia’s Burglary Statute was indivisible and provided four district factual means of describing how the statutory offense of burglary can be committed because the Virginia Courts analyze them interchangeably.  The Fourth Circuit noted that post Mathis, previous analysis of this failed because the statute has more than one way to satisfy a single element of a single crime.  Ultimately the Fourth Circuit indicated that the Burglary conviction could not be an aggravated felony because it criminalizes more conduct than the generic federal offense of burglary.

The Fifth Circuit agreed that the same result should happen here.  The court determined that it was obvious error to impose a Crime Of Violence Enhancement based on Reyes-Ochoa’s burglary conviction.

The court also determined that the enhancement affected Reyes-Ochoa’s substantial rights because without that enhancement he would be been subject to a guidelines range of 15-21 months which is lower than the 41 month sentence that was imposed.  The court also determined that “the fairness of the judicial proceedings and warrants the exercise of [the court’s] discretion to correct the error because his sentence was 20 months above the top of his correct guidelines range.

The Fifth Circuit Reversed, U.S. V. Reyes-Ochoa, 15-41270.

In a FAQ back when Johnson came out, my office noted that there were many different types of cases that could have been improperly enhanced due to the “crime of violence” language.  This is one of the instances that we found.  If you have “crime of violence” language in your PSI that leads to an enhancement then you may be able to fight it.  Please reach out to our office at [email protected]  to find out more.