United States v. Lazaro Ramirez-Flores , 756 F.3d 1276 ( 2014 )

Case: 12-15602 Date Filed: 06/27/2014 Page: 1 of 3
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15602
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D. C. Docket No. 8:12-cr-00169-EAK-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAZARO RAMIREZ-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
_________________________
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.
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PER CURIAM:
The petition for rehearing is DENIED, and no judge in regular active service
on the Court having requested that the Court be polled on rehearing en banc (Rule
35, Fed.R.App.P.), the petition for rehearing en banc is DENIED.
We reject Ramirez-Flores’ argument that United States v. Howard, 742 F.3d
1334 (11th Cir. 2014), published two days before the publication of this decision,
indicates that the South Carolina statute at issue in this case is indivisible under
Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013). The Howard
court addressed the issue pursuant to a preserved Descamps challenge, and held that
the Alabama statute at issue there was indivisible under the de novo standard of
review. 742 F.3d at 1340–41, 1349. By contrast, Ramirez-Flores did not preserve a
Descamps challenge, and this panel held that it was not “plain or obvious that the
[South Carolina] statute is indivisible.” United States v. Ramirez-Flores, 743 F.3d
816, 823 (11th Cir. 2014). Rather, we held that one reasonable interpretation of the
South Carolina statute was to criminalize “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 200 yards thereof.” Id. at 822. Our holding is
entirely consistent with Howard’s key to determining divisibility. 742 F.3d at 1348
(“The key to determining divisibility, according to Descamps, is whether the
‘statute sets out one or more elements of the offense in the alternative – for
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Case: 12-15602 Date Filed: 06/27/2014 Page: 3 of 3
example, stating that burglary involves entry into a building or an automobile’”
(quoting Descamps, 133 S. Ct. at 2281)).
Our holding is also entirely consistent with the application of the divisibility
analysis in Howard, because the language of the statutes in the two cases is very
different. In Howard, the statute’s language clearly created a non-exhaustive list of
illustrative examples of structures which could form the basis of a burglary
conviction. See id. at 1348–49. By contrast, the statute we considered in Ramirez-
Flores’ appeal created an exhaustive list of such structures. See S.C. Code §§ 16-
11-10, 16-11-310(2), 16-11-312(A). As a result, Howard does not provide a reason
to treat the statute under which Ramirez-Flores was convicted as indivisible under
the plain error standard of review. See United States v. Carruth, 528 F.3d 845, 846
n.1 (11th Cir. 2008) (“For a plain error to have occurred, the error must be one that
is obvious or clear under current law.”).
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