Tuesday, June 17, 2014

Boiler Plate Judicial Admission Sufficient to Narrow Conviction Under Modified Categorical Approach to Texas Penal Code § 30.02(a)(1), a COV

In prior decisions, the Fifth Circuit has held that a conviction for burglary under Texas Penal Code § 30.02(a)(1) is a § 2L1.2 crime of violence (COV), United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), while a conviction for burglary under § 30.02(a)(3) is not, United States v. Constante, 544 F.3d 584 (5th Cir. 2008).  The Fifth Circuit has also held in an unpublished decision that a general conviction under § 30.02 that cannot be narrowed to (a)(1) through the modified categorical approach is not a COV because § 30.02 is broader than the generic definition of burglary.  United States v. Morales-Ramirez, 540 F. App’x 368 (5th Cir. Sept. 25, 2013) (unpublished).
In Conde-Castaneda, the panel first decides that it can apply the modified categorical approach, since § 30.02(a) is divisible, to look at documents outside of the judgment (Shepard documents) to determine which of the three alternatives of § 30.02(a) form the basis of Conde-Castenada’s conviction.  Then the panel looks to the following documents:
-          Judgment, which establishes that Conde-Castaneda under § 30.02(a) but not a specific subsection;
-          Indictment, which charges Conde-Castaneda with violating § 30.02(a)(1) and § 30.02(a)(3), “but obviously cannot by itself establish the ultimate basis for his conviction”;
-          Written judicial confession, which states “I have read the Indictment . . . and I committed each and every act alleged therein . . . .”
The panel holds that the confession, “a pre-printed template under which Conde-Castaneda signed his name” sufficiently establishes that he was convicted of § 30.02(a)(1).  Conde-Castaneda argues that the template confession is insufficient based on United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013), which held that the adoption of a boiler plate judicial confession admitting that Espinoza committed the assault with every listed category of mental culpability did not conclusively prove mens rea.  The panel rejects the argument because of an earlier decision, United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008), which held that “a template confession sufficed to establish which offenses a conviction indicated.”  Espinoza cannot overturn the earlier decided case of Garcia-Arrellano.  To the extent that the holding of Espinoza is inconsistent with Garcia-Arellano, Garcia-Arellano controls.”
Thus, relying on Garcia-Arellano, the panel finds that Conde-Castaneda was convicted of burglary under § 30.02(a)(1) and receives the 16-level COV enhancement under § 2L1.2.  Given Espinoza, though, it might be worth preserving that objection—particularly for alternative elements in a statute that are mutually exclusive, thereby casting doubt as to the actual admission of guilt as to each one of them.

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