United States v. Jose Santos-Avila

616 F. App'x 187

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 25, 2015
• Docket: 14-20744
• Status: Unpublished

Opinion

PER CURIAM: *

Jose Digno Santos-Avila (Santos) pleaded guilty to illegal reentry after having been previously deported following an aggravated felony conviction, a violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to 36 months of imprisonment and a two-year term of supervised release. He argues that the district court erroneously applied an eight-level offense enhancement under U.S.S.G. § 2L1.2(b)(l)(C) on the ground that his 1998 Texas felony conviction for theft was an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Santos asserts that Texas’s theft statute encompasses conduct broader than the generic theft offense because the Texas statute defines theft to include the appropriation of property when it is with consent from the owner that has been induced through deception or coercion, and we have defined generic theft as the taking of property without the owner’s consent. He concedes that this issue is foreclosed by our decision United States v. Rodriguez-Salazar, 768 F.3d 437, 438 (5th Cir.2014), in which we held that the Texas theft statute, Texas Penal Code § 31.03, does not deviate from the generic crime of theft. However, Santos contends that this decision conflicts with our earlier decision in Martinez v. Mukasey, 519 F.3d 532, 541-42 (5th Cir.2008), in which we held that the federal offense of bank fraud does not meet the generic definition of theft. Therefore, under the rule of orderliness, Santos asserts that Martinez provides the governing rule for this matter. In the alternative, Santos requests an en banc hearing in this matter.’

In our decision in Rodriguez-Salazar, we specifically addressed any possible conflicts with our earlier decision in Martinez. We reiterated our holding in Martinez and emphasized that the question of a charged theft offense was not before the court and therefore, Martinez was not controlling precedent. Rodriguez-Salazar, 768 F.3d at 438. In light of this distinction and our analysis of consent in Rodriguez-Salazar, Santos has failed to establish we violated the rule of orderliness by not adhering to our previous holding in Martinez. See Rodriguez-Salazar, 768 F.3d at 438.

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