In United States of America vs. Perlaza-Ortiz, No. 16-40331, the Fifth Circuit vacated a sentence that was enhanced under USSG 2L1.2, an immigration guideline, in light of the Supreme Court’s decision in Mathis v. United States.

Perlaza-Ortiz pleaded guilty to unlawfully reentering the U.S. At sentencing Perlaza-Ortiz was enhanced 16 levels under 2L1.2 of the guidelines because of a prior “crime of violence” for a Texas conviction for a crime called “Deadly Conduct.” This enhancement helped produce a Guideline range of 46-57 months in criminal history category III, but the court downwardly departed to criminal history category II resulting in a guideline range of 41-51 months. The court then sentenced Perlaza-Ortiz to 41 months. In imposing sentence the judge said:

“I also want to be very clear in this case that this sentence, if there is any some – for whatever reason, any miscalculation or inappropriate determination of a guideline range, based on the 3553(a) factors, this would definitely still be my sentence as to what would be the appropriate sentence with the 3553(a) factors taken as a whole.” Perlaza-Ortiz argued that he should have only received an 8-level enhancement.

Texas Deadly Conduct is found in Section 22.05 of the Texas Penal Code which states:

“A person commits an offense if he knowingly discharges a firearm at or in the direction of:

(1) one or more individuals; or

(2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.”

In assessing whether Perlaza-Ortiz was entitled to relief, the Fifth Circuit stated:

“This case requires us to revisit the question of whether Section 22.05(b) is divisible, because Mathis supplants any of our precedents inconsistent with its methodology for identifying “truly divisible statutes.”A statute is “divisible” if it “defines multiple crimes.” If a statute is divisible, the court may use the “modified categorical approach,” which “permit[s] courts to examine ‘a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.’”

“Some criminal statutes appear divisible but are not.” Id. “These statutes, rather than providing alternative elements, instead list ‘various factual means of committing a single element.’ “In Mathis, the Supreme Court held that the modified categorical approach is not appropriate for this species of criminal statute.” Id.

“Mathis provided helpful guidance for determining whether a predicate statute of conviction is divisible.” “[I]n light of Mathis, we know that we must determine whether ‘listed items’ in a state statute ‘are elements or means . . . .’”“Elements must be agreed upon by a jury.” “When a jury is not required to agree on the way that a particular requirement of an offense is met, the way of satisfying that requirement is a means of committing an offense[,] not an element of the offense.” Id. “[I]f ‘a state court decision definitively answers the question’ our inquiry is at an end.” As a final note, there is a “demand for certainty” when evaluating “whether a defendant was convicted of a generic offense.”

The Fifth Circuit then looked at several UNPUBLIBSHED Texas state cases to illustrate that the subsections of 22.05 are alternate means as opposed to elements. The court looked at unpublished cases because they can provide some help to determine if a statute is divisible or not. Not only that but they looked at the underlying indictments in those cases as well. And then the court looked at legislative history including a final conference committee report and bill analysis in order to determine whether the the statute was divisible or not.

The court determined that the legislative history and the case law was clear but if it wasn’t then they cold look at the record of the conviction itself under Mathis including the indictment and the jury instructions.

As the Fifth Circuit held,

“Here, there can be no doubt that the indictment references “one . . . term to the exclusion of all others”5; it charges Perlaza-Ortiz unmistakably with a violation of 22.01(b)(1), and makes no mention of habitations, buildings, or vehicles. Still, the indictment, along with the other arguments the Government presents, would not be enough to establish with the requisite “certainty” that Perlaza-Ortiz was convicted of a generic offense, especially when it is balanced against the clear, if unpublished, Texas case law.”

Finally, the court also determined that the error wasn’t harmless. According to the Fifth Circuit:

The Government has not carried its burden of demonstrating that Perlaza-Ortiz’s sentence “was not influenced in any way by the erroneous Guideline calculation.’”

Accordingly, the Fifth Circuit Reversed, 16-40331

Jeremy’s Take: Yesterday I was on the phone with a loved one of a prisoner. I tried to explain the complexity of the categorical approach and consequently why it is important to have an attorney look at state court opinions, statutes and other sources in order to determine if an enhancement was properly applied. This decision proves my point. The Fifth Circuit considered unpublished court opinions, state legislature conference committee reports from 1993, among other materials. This is NOT something that you can done via a cursory phone call or even looking at just a PSI. Further, as you all know, the BOP does not make state law available in its law libraries.

The case also said that your attorney has to communicate the statutory maximums and minimums but also has to “know the guidelines.” That is up to interpretation by the courts. If you have a case where a lawyer did not adequately advise you or your loved one about the advantages and disadvantages of pleading guilty, then contact us today.


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The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.