United States v. Tomas Galvan-Fuentes

690 F. App'x 161

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 30, 2017
• Docket: 16-40516 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Tomas Galvan-Fuentes appeals following his guilty plea conviction and sentence for illegal reentry after deportation. He contends that the district court committed reversible plain error by imposing an enhancement under U.S.S.G, § 2L1.2(b)(l)(A)(ii) (2014) based on his pri- or Texas conviction for burglary of a habitation. Relying on Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), Galvan-Fuentes argues that the Texas burglary statute is broader than the enumerated offense of burglary of a dwelling and that the Texas burglary statute is not divisible for purposes of applying the modified categorical approach. Galvan-Fuentes concedes, however, that the issue he raises on appeal is foreclosed by this court’s decision in United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, — U.S. —, 137 S.Ct. 1359, 197 L.Ed.2d 542 (2017).

The Government agrees that Galvan-Fuentes’s Matte-based challenge is foreclosed by Uribe, and it has filed an opposed motion for summary affirmance. Summary affirmance is proper where, among other things, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyhe Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

In a pre-Mathis decision, we determined that the Texas burglary statute, Tex Penal Code Ann. § 30.02(a) (2009), is a divisible statute that is amenable to application of the modified categorical approach. See United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014). Galvan-Fuentes’s argument, in reliance on Mathis, that § 30.02(a) is not divisible and, thus, cannot support application of the modified categorical approach, was squarely rejected in Uribe, wherein we determined that the provisions of the Texas burglary statute set forth elements, rather than means, and that Conde-Castaneda had not been disturbed by Mathis. See Uribe, 838 F.3d at 670-71.

In view of the foregoing, the Government’s motion for summary affirmance is GRANTED, and the district court’s judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.