USA v. Civilo Lopez
UNPUBLISHED OPINION FILED. [12-20185 Affirmed ] Judge: JES , Judge: ECP , Judge: SAH Mandate pull date is 04/29/2013 for Appellant Civilo Camarillo Lopez [12-20185]
Date Filed: 04/08/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
April 8, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA,
Plaintiff - Appellee
CIVILO CAMARILLO LOPEZ, also known as Cirilo Camarillo Lopez, also
known as Cirilo Lopez Camarillo,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-506-1
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
Cirilo Camarillo Lopez appeals his within-guidelines sentence for illegal
reentry after an aggravated felony conviction. The probation officer calculated
a total offense level of 21, which included a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on Camarillo Lopez’s prior Texas conviction for
burglary of a habitation with intent to commit theft. Camarillo Lopez objected
to the 16-level enhancement on the grounds that Texas’s burglary of a habitation
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 04/08/2013
offense does not meet the generic definition of burglary of a dwelling because a
person may be convicted of burglary in Texas if he enters onto property without
the consent of another person who has “a greater right to possession of the
property than the actor.” Tex. Penal Code § 1.07(a)(35)(A). At sentencing, the
district court overruled the objection.
Camarillo Lopez makes the same argument on appeal. According to
Camarillo Lopez, because a person can be convicted of burglary of a habitation
in Texas even if he has a legitimate right to possess the property, the Texas
statute is broader than the generic definition of burglary of a dwelling. This
argument is foreclosed by this court’s decision in United States v. Morales-Mota,
in which we reasoned that “[m]erely maintaining an inferior possessory interest
in a habitation does not extinguish the potential violence that may result when
a person enters a habitation with intent to commit theft.” 704 F.3d 410, 412 (5th
Cir. 2013). Thus, the district court did not err in applying the crime of violence
enhancement in this case. See id.
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