United States v. Javier Alarcon

Fifth Circuit

United States v. Javier Alarcon

518 F. App'x 268

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 29, 2013

Docket11-20806

StatusUnpublished

This text of 518 F. App'x 268 (United States v. Javier Alarcon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Javier Alarcon, 518 F. App'x 268 (5th Cir. 2013).

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Opinion

PER CURIAM: *

Defendant-Appellant Javier Hernandez Alarcon pleaded guilty to being found in the United States illegally after being deported. His offense level was increased for a Texas conviction for burglary of a habitation that was deemed a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii) and was sentenced to 40 months of imprisonment.

Alarcon contends that the Texas burglary of which he was convicted was not a crime of violence because Texas law too broadly defines the “owner” of a habitation as a person with merely “greater right to possession” than the criminal actor. We review for plain error only because Alar-con raised the issue for the first time on appeal. See United States v. Ramirez, 557 F.3d 200, 205 (5th Cir.2009). Alarcon must, at a minimum, show a forfeited error that was “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

We recently rejected an indistinguishable argument in United States v. Joslin, 487 Fed.Appx. 139, 142-43 (5th Cir.2012), when we held that, notwithstanding the Texas theory of a “greater right to possession,” a Texas conviction for burglary of a habitation constitutes the “violent felony” *269 of generic burglary under the Armed Career Criminal Act (ACCA). The definition of “violent felony” under the ACCA is the same as the definition of “crime of violence” in § 2L1.2. United States v. Najera-Mendoza, 683 F.3d 627, 631 n. 3 (5th Cir.2012). Accordingly, Joslin, though unpublished, is on point and sufficient to show that there was no plain or obvious error. See Puckett, 556 U.S. at 135, 129 S.Ct. 1423. The judgment of the district court is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Defendant-Appellant Javier Hernandez Alarcon pleaded guilty to being found in the United States illegally after being deported. His offense level was increased for a Texas conviction for burglary of a habitation that was deemed a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii) and was sentenced to 40 months of imprisonment.

Alarcon contends that the Texas burglary of which he was convicted was not a crime of violence because Texas law too broadly defines the “owner” of a habitation as a person with merely “greater right to possession” than the criminal actor. We review for plain error only because Alar-con raised the issue for the first time on appeal. See United States v. Ramirez, 557 F.3d 200, 205 (5th Cir.2009). Alarcon must, at a minimum, show a forfeited error that was “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

We recently rejected an indistinguishable argument in United States v. Joslin, 487 Fed.Appx. 139, 142-43 (5th Cir.2012), when we held that, notwithstanding the Texas theory of a “greater right to possession,” a Texas conviction for burglary of a habitation constitutes the “violent felony” *269 of generic burglary under the Armed Career Criminal Act (ACCA). The definition of “violent felony” under the ACCA is the same as the definition of “crime of violence” in § 2L1.2. United States v. Najera-Mendoza, 683 F.3d 627, 631 n. 3 (5th Cir.2012). Accordingly, Joslin, though unpublished, is on point and sufficient to show that there was no plain or obvious error. See Puckett, 556 U.S. at 135, 129 S.Ct. 1423. The judgment of the district court is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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