Published on:

Defendant’s failure to object with specificity results in the court affirming a sentence enhancement for a prior burglary conviction as a crime of violence

After the defendant in U.S. v Ramirez-Florez pleaded guilty to reentry after deportation, he received a 16-level enhancement in his sentencing guidelines range because of a prior conviction for burglary of a dwelling in violation of the South Carolina conviction for burglary of a dwelling conviction that the district court determined was a crime of violence. The statute encompasses more than the generic definition of a burglary which is the unlawful entry into a residence. It also encompasses the unlawful entry into non-generic structures such as outhouses, sheds, or other buildings that are within two hundred yards of an appurtenant to a residence. Following the sentencing and after the briefs were filed on appeal, the Supreme Court decided Descamps v. U. S. and the defendant raised the argument for the first time at oral argument that the South Caroline statute is not divisible under Descamps and the district court erred in applying the modified categorical approach. In a divisible statute, where the statute sets out one or more elements of the offense in the alternative that in effect creates several different crimes, the courts must apply the modified categorical approach. If at least one of the alternative elements matches the generic definition, the court may consult a limited class of documents, such as the indictment and jury instructions to determine which element formed the basis of the defendant’s prior conviction.

Viewed the challenge to the defendant’s argument that the statute was divisible under the plain error because the argument was not raised before the district court or in the briefs on appeal. The defendant could not show that that the error was plain or obvious that the South Carolina statute is not divisible and found the issue is subject to interpretation.

In his second argument raised in the brief, he argued that his prior South Carolina conviction did not qualify as a crime of violence because the Shepard documents do not prove that he burglarized a generic dwelling. Because Ramirez-Flores could not show that the statute was indivisible, the court decided it was appropriate to consider Shepard documents. As the presentence investigation (psi) report presented evidence to the district court that the defendant’s prior burglary conviction involved the burglary of a residence. A court applying the modified categorical approach may consider undisputed facts in the psi which in this case said that the defendant forcibly entered the victim’s residence with a codefendant and removed property from the residence. Ramirez-Flores claims he objected at the sentencing hearing to these facts in the psi and therefore cannot rely on its description of his conduct. The court found that his objection was only a general objection to the factual and legal statements in the particular paragraph relating to the narrative of this prior conviction. The court held that vague assertions of inaccuracies are not sufficient to raise a factual dispute. “We require objections to the psi to be made with specificity and clarity in order to alert the government and the district court to the mistake of which the defendant complains.” The only factual objection made by the defendant to the psi was that the prior crime was not a crime violence and this did not fairly apprise the government or the court of any objections. Therefor the district court properly relied on undisputed facts.