Case: 12-15602

Date Filed: 02/21/2014

Page: 1 of 17

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15602
________________________
D. C. Docket No. 8:12-cr-00169-EAK-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAZARO RAMIREZ-FLORES,
Defendant-Appellant.

________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 21, 2014)
Before MARTIN and ANDERSON, Circuit Judges, and FULLER,* District Judge.

____________
*Honorable Mark E. Fuller, United States District Judge for the Middle District of
Alabama sitting by designation.

Case: 12-15602

Date Filed: 02/21/2014

Page: 2 of 17

ANDERSON, Circuit Judge:

Lazaro Ramirez-Flores appeals his forty-six months sentence for illegal reentry after deportation. Ramirez-Flores contends that the district court erred in
deeming his 2007 South Carolina conviction for the burglary of a dwelling a crime
of violence under United States Sentencing Guidelines (Guidelines)
2L1.2(b)(1)(A)(ii), which mandates a sixteen-level enhancement. After careful
review, we affirm the district courts judgment.
I.
Ramirez-Flores is a native and citizen of Mexico who first entered the United
States illegally in 1998. On June 27, 2012, he pled guilty to illegal re-entry in
violation of 8 U.S.C. 1325(a)(1), 1326(a), and 1329.
Prior to sentencing, the Probation Office prepared a Presentence Investigation
Report (PSI) and calculated the applicable Guidelines range to be forty-six to
fifty-seven months. The Probation Office based this determination on its finding
that Ramirez-Flores 2007 conviction for the burglary of a dwelling in violation of
S.C. Code 16-11-312(A) qualified as a crime of violence, leading to a sixteenlevel enhancement. See U.S.S.G. 2L1.2(b)(1)(A)(ii). Importantly for this appeal,
paragraph 28 of the PSI states that Ramirez-Flores forcibly entered the victims
residence with a co-defendant and removed property from the residence.

Case: 12-15602

Date Filed: 02/21/2014

Page: 3 of 17

Ramirez-Flores did not file written objections to the PSI, but he objected at
the sentencing hearing to paragraph 17, which imposed the sixteen-level
enhancement, and to the application of the law [and] facts in paragraph 28.
Specifically, he argued that the South Carolina burglary conviction did not
constitute a crime of violence because the corresponding judgment described the
offense as Burglary (Non-Violent). He also speculated that, while the indictment
charged him with entering the dwelling of the victim, he may have pled guilty to
a lesser offense. The district court overruled the objection and applied the sixteenlevel enhancement. Ramirez-Flores now challenges this determination.
Although the sentencing transcript suggests that neither party at sentencing
was aware of this fact, both parties agree on appeal that S.C. Code 16-11-312(A)
does not encompass only the federal generic definition of burglary. Rather, it
encompasses not only unlawful entry into a residence, but also unlawful entry into
non-generic structures, such as outhouses, sheds, or other buildings that are within
two hundred yards of and appurtenant to a residence. 1 See S.C. Code 16-11-10,
16-11-310(2), 16-11-312(A). In his initial brief on appeal, Ramirez-Flores argued
that the South Carolina statute can be violated by entering into a non-generic
1

It is for this reason that the government, in its brief on appeal, concedes that a
conviction under S.C. Code 16-11-312(A) does not necessarily involve facts equating to generic
burglary. Cf. United States v. McFalls, 592 F.3d 707, 71214 (6th Cir. 2010) (holding that 1611-312(A)s broad definition of dwelling means that the crime encompasses more conduct than
the generic definition of burglary of a dwelling). But cf. United States v. Wright, 594 F.3d
259, 266 (4th Cir. 2010) (holding that the text of 16-11-312(A) tracks the generic definition of
burglary).
3

Case: 12-15602

Date Filed: 02/21/2014

Page: 4 of 17

structure, such as a shed appurtenant to and within 200 yards of a dwelling. His
brief expressly urged this court to engage in the modified categorical approach
(described below), and argued that the government had failed to prove that his prior
South Carolina conviction rested on anything other than entry into such a shed. The
brief argued that the indictment and the judgment of conviction do not clear up the
ambiguity about which structure was entered, such that the government had failed
to prove that the prior South Carolina conviction was a crime of violence.
After the parties had completed briefing but before oral argument, the
Supreme Court decided Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276
(2013), clarifying the proper analytical approach for determining whether a
defendants sentence should be enhanced. 2 Ramirez-Flores argued for the first time
at oral argument that S.C. Code 16-11-312(A) is not a divisible statute within the
meaning of Descamps, and therefore urged us to confine our inquiry to the fact of
conviction and the statutory definition of the offense. He argued that his conviction
can never qualify as a crime of violence because the elements of S.C. Code 1611-312(A) sweep more broadly than the corresponding generic offense.
II.
2

Descamps involved a sentencing enhancement pursuant to the Armed Career

Criminal Act (ACCA), rather than, as relevant here, the Sentencing Guidelines. The Eleventh
Circuit has routinely employed the same analytical framework in both contexts. See, e.g., United
States v. Palomino Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010) (applying the analytical
approach established in ACCA cases in determining whether a prior offense qualifies for an
enhancement under the Guidelines).
4

Case: 12-15602

Date Filed: 02/21/2014

Page: 5 of 17

The Guidelines impose a sixteen-level enhancement in cases where an alien

was deported, or unlawfully remained in the United States, after . . . a conviction
for a felony that is . . . a crime of violence. U.S.S.G. 2L1.2(b)(1)(A)(ii). The
term crime of violence means any of the following offenses under federal, state,
or local law . . . [including the] burglary of a dwelling. Id. 2L1.2 cmt. n.1(B)(iii).
Not all burglaries qualify as a crime of violence. In resolving whether a
prior conviction triggers a Guidelines enhancement, we generally apply the
categorical approach set forth in Taylor v. United States, 495 U.S. 575, 60002, 110
S. Ct. 2143, 215960 (1990). Under Taylor, a conviction for burglary is a predicate
crime of violence only if the underlying state offense meets the generic definition
of burglarythat is, has the basic elements of unlawful or unprivileged entry into,
or remaining in, a building or structure, with intent to commit a crime. Taylor,
495 U.S. at 599, 110 S. Ct. at 2158; accord United States v. Rainer, 616 F.3d 1212,
121415 (11th Cir. 2010). If the statute of conviction sweeps more broadly than
the generic [burglary], a conviction under that law cannot [categorically] count as a
[crime of violence], even if the defendant actually committed [burglary] in its
generic form. Descamps, ___ U.S. at ___, 133 S. Ct. at 2283.
But in cases involving a divisible statutei.e., one that sets out one or
more elements of the offense in the alternative, in effect creating several different
crimesa modified categorical approach applies. See id. at ___, 133 S. Ct. at
5

Case: 12-15602

Date Filed: 02/21/2014

Page: 6 of 17

228385; Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1280 (11th Cir. 2013). If
at least one of the alternative elements matches the generic definition, we may
consult a limited class of documents, such as indictments and jury instructions, to
determine which alternative element formed the basis of the defendants prior
conviction. Descamps, ___ U.S. at ___, 133 S. Ct. at 2281. We have also
permitted the use of undisputed facts contained in a PSI. See United States v.
Bennett, 472 F.3d 825, 834 (11th Cir. 2006). 3 When properly applied, then, the
modified categorical approach enables us to identify, from among several
alternatives, the crime of conviction so that [we] can compare it to the generic
offense. Descamps, ___ U.S. at ___, 133 S. Ct. at 2285.
It is clear from Descamps and from our even more recent decision in Donawa
that the modified categorical approach serves a limited function and should be
used only in a narrow range of cases. Id. at___, 133 S. Ct. at 2283; accord
Donawa, 735 F.3d at 128081. If the statute of conviction defines burglary not
alternatively, but only more broadly than the generic offense, the modified
categorical approach has no role to play. Descamps, ___ U.S. at ___, 133 S. Ct.
at 2283, 2285.

We refer to this limited class of documents as Shepard documents. Shepard v.

United States, 544 U.S. 13, 125 S. Ct. 1254 (2005). Shepard documents also include the plea
agreement, the colloquy between the judge and the defendant at the plea hearing, and other
comparable judicial record. Id. at 26, 125 S. Ct. at 1263.
6

Case: 12-15602

Date Filed: 02/21/2014

Page: 7 of 17

III.
We first consider Ramirez-Flores most recent argument that S.C. Code 1611-312(A) is not a divisible statute within the meaning of Descamps. Because a
conviction under S.C. Code 16-11-312(A) does not necessarily involve conduct
equating to generic burglary, his new argument goes, a conviction under that statute
can never qualify as a predicate crime of violence for purposes of the Guidelines,
even if he actually committed a generic burglary.
At the outset, the government contends that we should review for plain error
because Ramirez-Flores did not raise this argument in the district court or in his
briefs to this court. We agree. We have consistently stated that a defendant seeking
to preserve an objection to his sentence for appeal must raise that point in such
clear and simple language that the trial court may not misunderstand it. United
States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006). The defendant . . . fails to
preserve a legal issue for appeal if the factual predicates of an objection are
included in the sentencing record, but were presented to the district court under a
different legal theory. Id. (emphasis added); see also United States v. Weeks, 711
F.3d 1255, 1261 (11th Cir. 2013) (reviewing for plain error a new legal argument
supporting an objection that was raised in the district court); United States v. Doe,
661 F.3d 550, 567 (11th Cir. 2011) (same); United States v. Castro, 455 F.3d 1249,
125253 (11th Cir. 2006) (same). At sentencing, Ramirez-Flores objected to the
7

Case: 12-15602

Date Filed: 02/21/2014

Page: 8 of 17

sixteen-level enhancement on the ground that his prior South Carolina conviction
did not amount to a crime of violence because the corresponding judgment of
conviction described the offense as Burglary (Non-Violent). He also speculated
that he may not have pled to the same crime as described in the charging
instrument. These objections are substantively different from the argument
Ramirez-Flores now raises, namely that a conviction under S.C. Code 16-11312(A) can never qualify as a crime of violence, even if he actually committed
burglary in its generic sense.4 We therefore review his current argument for plain
error. See, e.g., Weeks, 711 F.3d at 1261; Doe, 661 F.3d at 567; Castro, 455 F.3d at
125253.
To prevail under the plain error standard, an appellant must show: (1) an
error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4)
it seriously affected the fairness of the judicial proceedings. United States v. Pena,
684 F.3d 1137, 1151 (11th Cir. 2012). An error is plain if controlling precedent
from the Supreme Court or the Eleventh Circuit establishes that an error has
occurred. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
Additionally, the relevant time period for assessing whether an error is plain is at
the time of appellate consideration. United States v. McKinley, 732 F.3d 1291,
4

Indeed, Ramirez-Flores implicitly argued the exact opposite position in the district
court and in his briefs to this court by insisting that the modified categorical approach should
apply. See Appellants Br. at 1821 (urging this court to apply the modified categorical approach
to determine if the defendant was actually found guilty of the elements of generic burglary);
Sentencing Tr. at 56 (referring the district court to the language of the judgment).
8

Case: 12-15602

Date Filed: 02/21/2014

Page: 9 of 17

1295 (11th Cir. 2013) (internal quotation and citation omitted); accord Henderson
v. United States, ___ U.S. ___, ___, 133 S. Ct. 1121, 1130 (2013). In this case,
even assuming arguendo that the district court erred in finding that Ramirez-Flores
prior conviction qualified as a crime of violence, the error is not plain.
S.C. Code 16-11-312(A) provides that [a] person is guilty of burglary in
the second degree if the person enters a dwelling without consent and with the
intent to commit a crime therein. Dwelling encompasses its definition as found
in S.C. Code 16-11-10, which in turn states:
With respect to the crim[e] of burglary . . . , any house, outhouse,
apartment, building, erection, shed or box in which there sleeps a
proprietor, tenant, watchman, clerk, laborer or person who lodges there
with a view to the protection of property shall be deemed a dwelling
house, and of such a dwelling house or of any other dwelling house all
houses, outhouses, buildings, sheds and erections which are within two
hundred yards of it and are appurtenant to it or to the same
establishment of which it is an appurtenance shall be deemed parcels.
Id. 16-11-10.
Neither the parties nor this court have been able to identify a case interpreting
whether S.C. Code 16-11-312(A) is divisible for federal sentencing purposes. We
cannot conclude that it is plain or obvious that the South Carolina statute is
indivisible, as Ramirez-Flores contends. It could be argued that S.C. Code 16-11312(A) i.e., criminalizing the entry of a dwelling without consent and with intent
to commit a crime might be indivisible, if considered in isolation. The argument
would proceed as follows: if the term dwelling were undefined, then the statute
9

Case: 12-15602

Date Filed: 02/21/2014

Page: 10 of 17

would create only a single crime i.e., entry into a dwelling and thus might be
indivisible.5 However, it is certainly neither plain nor obvious that the South
Carolina statute should be read in this manner; thus, it is neither plain nor obvious
that the statute is indivisible. For example, if the statutory definition of the term
dwelling is simply inserted into S.C. Code 16-11-312(A), then the statute
criminalizes entry without consent and with criminal intent into either a structure in
which someone sleeps or a shed or other structure appurtenant thereto and within
two hundred yards thereof. In that case, the statute would more readily be deemed
divisible. It would list[] multiple, alternative elements, and so effectively create[]
several different . . . crimes. Descamps, ___ U.S. at ___, 133 S. Ct. at 2285
(internal quotations omitted). And one alternativethe entry into the structure in
which someone sleepswould correspond to generic burglary; the other would not.
With respect to such a divisible statute, the modified categorical approach applies,
and courts may look to the Shepard documents to determine the particular
alternative crime of which the defendant was convicted.
We need not in this case definitively decide that the South Carolina statute at
issue is divisible. We need decide only that it is not plain or obvious that the statute
5

If considered in isolation, S.C. Code 16-11-312(A) would only swee[p] more

broadly than the generic crime, Descamps, ___ U.S. at ___, 133 S. Ct. at 2283, if the term
dwelling is read to encompass structures in addition to those constituting generic burglary.
Such a reading is neither plain nor inevitable. But if such a reading were adopted, then S.C. Code
16-11-312(A) would mirror Descamps example of an indivisible statute that criminalizes
assault with an indeterminate weapon. See id. at ___, 133 S. Ct. at 2290.
10

Case: 12-15602

Date Filed: 02/21/2014

Page: 11 of 17

is indivisible. Thus, Ramirez-Flores new argument based on Descamps cannot

survive plain error review.
IV.
Having rejected Ramirez-Flores new argument based on Descamps, we turn
to the argument set forth in his briefs on appeali.e., his argument that his prior
South Carolina conviction does not qualify as a crime of violence because the
Shepard documents do not prove that he burglarized a generic dwelling.6 As noted
above, Ramirez-Flores cannot maintain in this appeal that the South Carolina statute
is indivisible. Thus, he cannot maintain in this appeal that the modified categorical
approach is inappropriate. Accordingly, we assume arguendo that it is appropriate
to consider the Shepard documents, as both parties urged in the district court and in
their briefs on appeal.
The primary evidence before the district court indicating that RamirezFlores prior conviction involved the burglary of a residence was the PSI. As noted
above, we have held that a sentencing court applying the modified categorical
approach may consider undisputed facts contained in the PSI. Bennett, 472 F.3d at
834. Paragraph 28 of the PSI states that Ramirez-Flores forcibly entered the
victims residence with a co-defendant and removed property from the residence.
6

Since Ramirez-Flores objected on this basis in the district court, we review his
argument de novo. United States v. Harris, 586 F.3d 1283, 1284 (11th Cir. 2009) (We review de
novo whether a defendants prior conviction qualifies as a crime of violence under the
Sentencing Guidelines.).
11

Case: 12-15602

Date Filed: 02/21/2014

Page: 12 of 17

Ramirez-Flores claims that he objected at the sentencing hearing to the facts set
forth in that paragraph and, therefore, we may not rely on its description of his
conduct. This argument is without merit. While it is true that Ramirez-Flores made
a general objection to the factual and legal statements in paragraph 28,7 such vague
assertions of inaccuracies are not sufficient to raise a factual dispute. Id. at 832
(stating that challenges to the facts contained in the PSI must be asserted with
specificity and clarity . . . [or] the objection is waived (internal citations omitted)).
Our review of the sentencing hearing persuades us that the only factual objection to
the PSI made by Ramirez-Flores attorney was that the prior crime was non-violent.
Nothing that the attorney said indicated any objection to the fact that RamirezFlores entered the victims residence with a co-defendant and removed property
from the residence, as reported in the PSI. It is apparent from the governments
response that the only factual objection to which the government was alerted related
to the asserted non-violence. 8 Our careful review of the sentencing transcript
persuades us that Ramirez-Flores did not fairly apprise the government or the

In answer to the district courts question as to whether his objection was to the
application of the law or facts, Ramirez-Flores attorney answered: Slight application of both.
Sentencing Tr. at 5.
8

Ramirez-Flores does not argue on appeal that an unlawful, but non-violent, entry
into a residence with the intent to commit a crime would not qualify as a crime of violence.
12

Case: 12-15602

Date Filed: 02/21/2014

Page: 13 of 17

district court of any objection to the fact set forth in the PSI that he had entered the
residence of the victim. 9
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. See United States v. Aleman, 832 F.2d 142, 145 (11th Cir.
1987) (observing that vague objections would oblige the district court to guess
whether a challenge is being mounted as well as what [the] defendant wishes to
contest). This requirement is not gratuitous; rather, it ensures that the government
has an opportunity to address or correct the alleged error. See United States v.
Gallo-Chamorro, 48 F.3d 502, 50708 (11th Cir. 1995) (declining to consider the
defendants argument because additional facts would have been developed in the
trial court had the [specific objection] been presented there (internal quotation and
9

The attorneys speculation that Ramirez-Flores might have pled to a lesserincluded offense did not fairly raise an objection that the offense may not have involved the
victims residence. The attorneys comment was mere speculation. And even that speculation
suggested no objection to any fact other than the asserted non-violence. Moreover, to the extent
this speculation challenges the fact that the prior conviction was for the burglary of a dwelling,
the finding of the district court was properly based on, and amply supported by, the Shepard
documents. The indictment provided:
Burglary/Burglary 2nd Degree (Non-Violent) (After June 20, 1985)
That in Beaufort County, on or about 2007-10-11 the Defendant, Lazaro Flores,
did enter the dwelling of Ana Moreira located at 61 Scott Hill Road, St. Helena
without consent and with the intent to commit a crime therein in violation of
Section 16-11-312(A) and 16-1-80 of the South Carolina Code of Laws (1976, as
amended).
And the judgment of conviction showed that Ramirez-Flores pled to that indictment and was thus
adjudged convicted of: Burglary/Burglary (Non-Violent) (After June 20, 1985) Second degree
in violation of 16-11-0312 of the S.C. Code of Laws. Indeed, the judgment of conviction
checked a box which expressly stated that Ramirez-Flores had pled to the charge as indicted.
13

Case: 12-15602

Date Filed: 02/21/2014

Page: 14 of 17

citation omitted)). In this case, for example, the government could have obtained
further documentation from the state court proceedinge.g., the plea agreement or
the transcript of the plea colloquyhad it known that it needed to clarify whether
Ramirez-Flores burglarized a residence or a secondary structure. Accordingly, in
cases such as this . . . judicial economy is served and prejudice is avoided by
binding the parties to the facts presented and the theories argued below. Id.
(internal quotation and citation omitted).
We therefore conclude that Ramirez-Flores failed to object to the PSIs
statement that the conduct underlying his South Carolina burglary conviction
involved entry into the victims residence. Because the district court properly relied
upon that fact as undisputed, Ramirez-Flores argument that his prior conviction
may not have involved generic burglary fails.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

14

Case: 12-15602

Date Filed: 02/21/2014

Page: 15 of 17

MARTIN, Circuit Judge, concurring:

I concur in both the reasoning and the result of the majority opinion. I write
separately, however, to highlight the role of this Circuits waiver precedent in
arriving at this result. As the majority opinion points out, the Supreme Court
recently clarified how courts should apply the categorical and modified categorical
approaches in Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276 (2013).
Descamps makes clear that, when we consider a statute like S.C. Code 16-11-312
that criminalizes some conduct that would constitute a crime of violence and some
conduct that would not, we must first consider whether or not the statute is divisible
before we apply the modified categorical approach. See id. at 2285. As the
majority points out, and evidenced by the parties arguments in this appeal, there
are persuasive arguments on both sides of that question for S.C. Code 16-11-312.
But because Mr. Ramirez-Flores did not object to the District Courts application of
the modified categorical approach during the sentence hearing, we review the
District Courts answer to that question only for plain error. 1 As a result, we apply

In referring to Mr. Ramirez-Floress counsels acquiescence to the modified categorical

approach at the sentence hearing, it seems only fair to acknowledge that counsel did not have the
benefit of the Supreme Courts teaching in the Descamps opinion at the time. The Descamps
opinion was issued after Mr. Ramirez-Flores was sentenced. And the Descamps Court recognized
the circuit split which existed about whether the modified categorical approach applies to
statutes . . . that contain a single, indivisible set of elements sweeping more broadly than the
corresponding generic offense. 133 S. Ct. at 2283. So to the extent Mr. Ramirez-Floress
counsel thought the modified categorical approach was appropriate, he was not alone. Indeed
there remain conflicting views even after Descamps.
15

Case: 12-15602

Date Filed: 02/21/2014

Page: 16 of 17

the modified categorical analysis here even though we might not were we
conducting de novo review.
Because we apply the modified categorical approach, we reach the issue of
whether Mr. Ramirez-Floress objection to the facts set forth in paragraph 28 of the
presentence investigation report (PSR) precluded the District Court from relying on
it. This Circuits precedent regarding the adequacy of objections is unforgiving. At
the sentence hearing, the District Court asked counsel whether there were any
objections as to the factual accuracy of the [PSR] or as to the application of the
guidelines as contained in the presentence report. Mr. Ramirez-Floress counsel
said he had both. The Court inquired Which paragraph is in question?, and
counsel identified paragraph 28. There was then some general discussion about
whether the prior burglary conviction, described in paragraph 28 of the PSR, was
violent or nonviolent.
Under the precedent of this Court, this objection does not preserve the issue
for appellate review. In order to have done so, counsel would have been required to
explain with specificity and clarity, United States v. Bennett, 472 F.3d 825, 832
(11th Cir. 2006) (per curiam), that he objected to the description of the dwelling
burglarized as a residence. This he did not do, and as a result we consider that
fact admitted. See id. at 83334.

16

Case: 12-15602

Date Filed: 02/21/2014

Page: 17 of 17

This is all to say that, had the proceedings unfolded differently below, Mr.
Ramirez-Flores might see relief. Indeed if he had had the benefit of Descamps at
the time of his sentencing, that might also be true. But given the reality of the
record on appeal, we are bound by our precedent to deny him relief now.

17