United States v. Jesus Gasca

689 F. App'x 826

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 26, 2017
• Docket: 16-40189 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Jesus Jose Gasea appeals the sentence of 42 months of imprisonment imposed following his guilty-plea conviction of illegal reentry into the United States following deportation. See 8 U.S.C. § 1326(a), (b). According to Gasea, the district court erred in treating his 2004 conviction under Texas Penal Code § 30.02 as a crime of violence because, under Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), § 30.02 is indivisible and not categorically a crime of violence for purposes of U.S.S.G. § § 2L1.2(b)(l)(A)(ii). We review the district court’s interpretation or application of the Sentencing Guidelines de novo. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

The Texas burglary statute, § 30.02(a) has three subsections, and we have held that an offense under § 30.02(a)(1) qualifies as generic burglary. See United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014). Moreover, § 30.02(a) is divisible and therefore amenable to the modified categorical analysis. Conde-Castaneda, 753 F.3d at 176. In United States v. Uribe, 838 F.3d 667, 669-71 (6th Cir. 2016), cert. denied, — U.S. -, 137 S.Ct. 1359, 197 L.Ed.2d 542 (2017), we affirmed the continuing viability of Conde-Castaneda after Mathis. Gasca’s arguments are therefore unavailing. See id. 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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.