Eleventh Circuit Confirms that Burglary of a Dwelling is a Crime of Violence

In United States v. Ramirez-Flores, No. 12-15602 (Feb. 21, 2014), the Eleventh Circuit affirmed the district court’s decision that Ramirez-Flores’s conviction for burglary of a dwelling constituted a “crime of violence” under the United States Sentencing Guidelines, subjecting him to a sixteen-level enhancement.

Ramirez-Flores pled guilty to illegal reentry. He was sentenced according to a sixteen-level enhancement available where an alien “was deported, or unlawfully remained in the United States, after…a conviction for…a crime of violence” based on a 2007 South Carolina burglary conviction. U.S.S.G. §2L1.2(b)(1)(A)(ii). The district court applied a modified categorical approach and looked outside the fact of the burglary conviction and statute to determine that Ramirez-Flores’s conduct was within the generic definition of burglary, which constitutes a “crime of violence.” Ramirez-Flores appealed the determination that his South Carolina burglary conviction was a “crime of violence.” He claimed the outside documents did not prove Ramirez-Flores’s burglary was of a generic dwelling because a PSI, which was the primary evidence of the generic dwelling, was contested and should not have been considered.

After the parties filed briefs in this case but before oral argument, the Supreme Court decided Decamps v. United States, 133 S. Ct. 2276 (2013). In Decamps, the Supreme Court held that the modified categorical approach should only be applied when a statute is divisible. If the statute is indivisible and the conduct it criminalizes is broader than the generic definition of the crime, the statute does not constitute a “crime of violence.” In the case of an indivisible statute, the court may not look outside the fact of the conviction and the statute to determine if the defendant’s actual conduct was within the scope of the generic definition.

Based on Decamps, Ramirez-Flores argued for the first time at oral argument that S.C. § 16-11-312(A) is not a divisible statute within the meaning of Decamps because it does not list alternative elements. Since the scope of conduct covered by S.C. § 16-11-312(A) is broader than the generic definition of burglary and it is indivisible, Ramirez-Flores contended the analysis of the court should have been confined to the fact of the conviction and the definition of the offense.

The Eleventh Circuit determined that Ramirez-Flores had waived the divisibility argument by failing to raise it at the district court or in his brief. The Court, therefore, reviewed the argument only for plain error. The Court determined it was not plain error to determine that the South Carolina statute for burglary of a dwelling was divisible because the statute listed multiple alternative definitions of dwelling.

The Court then applied the modified categorical approach to the presumably divisible statute to determine which of the alternative definitions of dwelling the defendant’s conviction relied upon. The Court rejected Ramirez-Flores briefed argument because the attorney did not object with enough specificity to the PSI. The Court relied on the PSI to confirm that Ramirez-Flores burglarized a residence, which falls within the generic definition and is, therefore, a “crime of violence.”

In a separate concurrence, Judge Martin emphasized the Circuit’s waiver precedent dictated the outcome of this case. He stated that there are good arguments on both sides of the divisibility issue and had the Decamps decision come out before this case was briefed and the issue been properly preserved for this appeal, the outcome may have been different.

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