from the United States District Court for the Southern
District of Texas
DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
L. DENNIS, Circuit Judge.
Martin Guillen-Cruz pleaded guilty to being found in the
United States after a previous deportation in violation of 8
U.S.C. § 1326(a) and (b). The probation officer who
prepared Guillen-Cruz's presentence report (PSR) added
eight points to his offense level because he had a prior
conviction for exporting defense articles on the United
States Munitions List without a license in violation of 22
U.S.C. § 2778(b)(2) and (c). The PSR concluded that
Guillen-Cruz's conviction constituted a prior aggravated
felony for purposes of the United States Sentencing
Guidelines (USSG or Guidelines) § 2L1.2(b)(1)(C),
defined in 8 U.S.C. § 1101(a)(43)(C). After all the
factors were accounted for, the PSR calculated
Guillen-Cruz's offense level as 14. At sentencing, the
district court reduced the offense level to 13, resulting in
an advisory sentencing range of 18 to 24 months'
imprisonment. The district court sentenced Guillen-Cruz to 24
appeals, asserting an argument he did not raise below: the
district court inappropriately imposed a sentencing
enhancement pursuant to USSG § 2L1.2(b)(1)(C). Because
we find that the district court erred in imposing the
enhancement, that each factor of plain error review is
satisfied, and that the error merits the exercise of our
discretion, we VACATE Guillen-Cruz's sentence and REMAND
court reviews the district court's interpretation of the
Guidelines de novo. United States v. Ocana, 204 F.3d
585, 588 (5th Cir. 2000). Because Guillen-Cruz did not raise
an objection to the enhancement before the district court, we
review for plain error. See United States v.
Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). To
establish plain error, Guillen-Cruz must show: (1) an error
or defect "that has not been intentionally relinquished
or abandoned"; (2) that the legal error was "clear
or obvious, rather than subject to reasonable dispute";
and (3) that the error affected his substantial rights.
United States v. Escalante-Reyes, 689 F.3d 415, 419
(5th Cir. 2012) (en banc) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)). If these three
elements are satisfied, we have the discretion to remedy the
error "if the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings."
Id. (quoting Puckett, 556 U.S. at 135).
USSG § 2L1.2(b)(1)(C), a district court must increase a
defendant's offense level by eight if the defendant has
previously been deported after a conviction for an aggravated
felony. "Aggravated felony" has the meaning given
that term at 8 U.S.C. § 1101(a)(43), which contains a
lengthy list of offenses and categories of offenses. The
Government argues that Guillen-Cruz's prior conviction
under 22 U.S.C. § 2778 qualifies as an aggravated felony
either under 8 U.S.C. § 1101(a)(43)(C), defining
aggravated felony as "illicit trafficking in firearms,
" "destructive devices, " or "explosive
materials, " or under § 1101(a)(43)(E)(ii),
defining aggravated felony as an offense described in 18
U.S.C. § 924(b).
considering whether a defendant's prior conviction
constitutes an aggravated felony, "courts use what has
become known as the 'categorical approach': They
compare the elements of the statute forming the basis of the
defendant's conviction with the elements of the
'generic' crime-i.e., the offense as
commonly understood." Descamps v. United
States, 133 S.Ct. 2276, 2281 (2013). However, "[i]f
the statute of conviction defines multiple offenses, at least
one of which does not describe an aggravated felony, we apply
a modified categorical approach." Larin-Ulloa v.
Gonzales, 462 F.3d 456, 464 (5th Cir. 2006). This
modified categorical approach allows for examination of
specified documents to determine under which subsection of a
divisible statute the individual was convicted. Omari v.
Gonzales, 419 F.3d 303, 308 (5th Cir. 2005). For guilty
plea convictions, this "may include consideration of the
'charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.'"
Id. (quoting Shepard v. United States, 544
U.S. 13, 20-21 (2005)). Usually, courts must first determine
whether to apply the categorical or modified categorical
approach. See generally Mathis v. United States, 136
S.Ct. 2243 (2016). However, because Guillen-Cruz's prior
offense is not an aggravated felony under either approach, we
pretermit deciding which approach is
sentence was enhanced based on a violation of 22 U.S.C.
§ 2778(b)(2) and (c), which prohibit the willful export
of articles on the Munitions List, 22 C.F.R. § 121.1,
without a license. Guillen-Cruz argues that his conviction is
not an aggravated felony because he was convicted of
exporting high-capacity rifle magazines, which he contends is
conduct that does not fall under the definition of aggravated
felony at 8 U.S.C. § 1101(a)(43)(C). The Government does
not argue to the contrary, instead asserting that
Guillen-Cruz cannot meet his ...