United States v. Jorge Turrubiartes-Gonzalez

689 F. App'x 811

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 25, 2017
• Docket: 16-40328 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Jorge Turrubiartes-Gonzalez pleaded guilty to a single-count indictment charg ing him with illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1326(a) & (b). On appeal, he argues that the district court erred in applying the 12-level “crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2015) based on his prior conviction of burglary of a habitation in violation of Texas Penal Code § 30.02(a).

We review de novo the district court’s interpretation and application of the Sentencing Guidelines, including its determination that a defendant’s prior conviction qualifies as a “crime of violence” under § 2L1.2. United States v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011). In United States v. Conde-Castaneda, 753 F.3d 172, 176-77 (5th Cir. 2014), we held that § 30.02(a) is a divisible statute and that a conviction under § 30.02(a)(1) qualifies as a generic burglary. We recently revisited the holding in Conde-Castaneda in light of Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016) cert. denied, — U.S. -, 137 S.Ct. 1359, 197 L.Ed.2d 542 (2017). In Uribe, we decided that § 30.02(a) “is elements-based, it is divisible and the modified categorical approach applies.” Id. at 671. The state court documents clearly show that Turrubiartes-Gonzalez was convicted under subsection (a)(1) of the Texas burglary statute. Accordingly, the district court properly applied the 12-level ‘‘crime of violence” enhancement under § 2L1.2(b)(l)(A)(ii).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cm.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