USA v. Nelson Suazo

Filing

UNPUBLISHED OPINION FILED. [12-20029 Affirmed ] Judge: HRD , Judge: ECP , Judge: PRO Mandate pull date is 04/11/2013 for Appellant Nelson Antonio Suazo [12-20029]

Case: 12-20029

Document: 00512182492

Page: 1

Date Filed: 03/21/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-20029
Summary Calendar

March 21, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NELSON ANTONIO SUAZO, also known as Antonio Nelson Suazo, also known
as Nelson Suazo,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-619-1

Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Nelson Antonio Suazo pleaded guilty to illegally reentering the United
States after being deported.

His offense level was increased for a Texas

conviction for burglary of a habitation that was deemed a “crime of violence”
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court granted a downward
variance and sentenced Suazo to 36 months in prison.

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 12-20029

Document: 00512182492

Page: 2

Date Filed: 03/21/2013

No. 12-20029
Suazo contends that his prior Texas burglary was not a crime of violence
because Texas law too broadly defines the “owner” of a habitation as a person
with merely “greater right to possession” than the criminal actor. We review
only for plain error because the issue is raised for the first time on appeal. See
United States v. Ramirez, 557 F.3d 200, 205 (5th Cir. 2009). Suazo must, at
minimum, show a forfeited error that was “clear or obvious, rather than subject
to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009).
We recently rejected an indistinguishable argument in United States v.
Joslin, 487 F. App’x 139, 142-43 (5th Cir. 2012), when we held that,
notwithstanding the “greater right to possession” theory, a Texas conviction for
burglary of a habitation constitutes the “violent felony” of generic burglary under
the Armed Career Criminal Act (ACCA). The definition of “violent felony” under
the ACCA is the same as the definition of “crime of violence” in § 2L1.2. United
States v. Najera-Mendoza, 683 F.3d 627, 631 n.3 (5th Cir. 2012). Accordingly,
Joslin, though unpublished, is on point and sufficient to show that there was no
obvious or plain error. See Puckett, 556 U.S. at 135. The judgment of the district
court is AFFIRMED.

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