United States v. Felix Uribe, 15-51223

Citation838 F.3d 667
Decision Date03 October 2016
Docket NumberNo. 15-51223,15-51223
Parties United States of America, Plaintiff–Appellee v. Felix Uribe, also known as Francisco Servin Luna, Defendant–Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

838 F.3d 667

United States of America, Plaintiff–Appellee
v.
Felix Uribe, also known as Francisco Servin Luna, Defendant–Appellant

No. 15-51223

United States Court of Appeals, Fifth Circuit.

Filed October 3, 2016


Joseph H. Gay, Jr., Mara Asya Blatt, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff–Appellee.

838 F.3d 669

Gerald Conway Moton, Esq., Moton Law Office, San Antonio, TX, for Defendant–Appellant.

Before REAVLEY, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Felix Uribe pled guilty to violating 8 U.S.C. § 1326 for illegally reentering the United States after being deported. Because Uribe had previously been convicted of burglary of a habitation in Texas, see Tex. Penal Code § 30.02(a), his presentence report included, and the district court applied, a 16–level crime of violence enhancement to Uribe's base offense level pursuant to the Sentencing Guidelines. U.S.S.G. § 2L.2(b)(1)(A)(ii). This court has previously held that Tex. Penal Code § 30.02(a)(1) defines a generic burglary of a dwelling within the scope of this enhancement. The question Uribe raises here is whether our precedent must be altered in light of Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). We hold it does not and affirm the sentence.

Although Uribe's judicial confession to burglary of a habitation does not expressly state whether he violated § 30.02(a)(1) or (a)(3), he effectively confessed to violating both provisions when he admitted he “unlawfully ... intentionally and knowingly entered a habitation ... with the intent to commit theft,” see id. § 30.02(a)(1), and “did unlawfully ... intentionally and knowingly enter a habitation ... and then and there commit and attempt to commit theft,” see id. § 30.02(a)(3).1

The district court overruled Uribe's objection to the 16–level enhancement and sentenced Uribe to a term of imprisonment of 75 months, followed by a three-year term of supervised release. The district court added that it would have imposed the same sentence due to Uribe's criminal history and the 18 U.S.C. § 3553(a) sentencing factors even if the crime of violence enhancement was incorrect. Uribe timely appealed.

DISCUSSION

The district court's enhancement was proper under the Sentencing Guidelines, which authorize a 16–level increase in sentencing range for committing a prior “crime of violence.” U.S.S.G. § 2L.2. This court has held that under the modified categorical approach, Texas Penal Code § 30.02(a) is a divisible statute, and that § 30.02(a)(1) matches the generic definition of “burglary of a dwelling” because it comprises the elements of “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” United States v. Murillo–Lopez, 444 F.3d 337, 341 (5th Cir. 2006) (quoting Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ).

838 F.3d 670

This subsection falls within the guidelines' relevant definition of a crime of violence. United States v. Conde–Castaneda, 753 F.3d 172, 175–79 (2014). The issue in this case is whether the Supreme Court's recent decision in Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) disturbs Conde–Castaneda. We hold that it does not.

Mathis applied the categorical approach to a state burglary statute that contained alternative means to satisfy one of its elements. In so doing, Mathis provided helpful guidance for determining whether a predicate statute of conviction is divisible. United States v. Howell , No. 15–10336, ...

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