USA v. Francisco Hernandez-Salazar

Filing

UNPUBLISHED OPINION FILED. [12-40394 Affirmed ] Judge: JES , Judge: ECP , Judge: SAH Mandate pull date is 02/28/2013 for Appellant Francisco Hernandez-Salazar [12-40394]

Case: 12-40394

Document: 00512138256

Page: 1

Date Filed: 02/07/2013

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

FILED
February 7, 2013

No. 12-40394
Summary Calendar

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO HERNANDEZ-SALAZAR,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
Case No. 5:11-CR-1304-1

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Francisco Hernandez-Salazar pleaded guilty to
illegal reentry, in violation of 18 U.S.C. § 1326, and was sentenced to 78 months’
imprisonment and a three-year term of supervised release. He raises two issues
on appeal: whether the district court erred in (1) imposing a 16-level sentence
enhancement based on his prior Texas conviction for 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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No. 12-40394
and (2) refusing to adjust downward his offense level pursuant to U.S.S.G. §
3E1.1(b).
Because he did not preserve those issues, our review is for plain error.
Puckett v. United States, 556 U.S. 129, 135 (2009). To prevail, HernandezSalazar must demonstrate a legal error that is clear or obvious and affected his
substantial rights. Id. If he makes that showing, we have discretion to remedy
the error—“discretion which ought to be exercised only if the error ‘seriously
affected the fairness, integrity or public reputation of judicial proceedings.’ ” Id.
Section 2L1.2(b)(1)(A)(ii) of the Guidelines increases a defendant’s offense
level by 16 levels if he was previously removed following a conviction for, inter
alia, “burglary of a dwelling,” an enumerated “crime of violence.” U.S.S.G. §
2L1.2(b)(1)(A)(ii) cmt. n.1 (B)(iii) (2012). The indictment, a Shepard-approved
document, clarifies that appellant was convicted of § 30.02(a)(1) of the Texas
Penal Code: knowingly and intentionally entering a habitation, without the
effective consent of the owner, with the intent to commit theft. United States v.
Murillo-Lopez, 444 F.3d 337, 341, 344–45 (5th Cir. 2006) (noting that courts may
look to certain adjudicative records, including the charging document, to
determine whether a prior offense qualifies as a crime of violence). Because we
have held that burglary of a habitation under § 30.02(a)(1) fits within the generic
definition of “burglary of a dwelling” and correspondingly qualifies as a “crime
of violence” under § 2L1.2(b)(1)(A)(ii), we discern no plain error. United States
v. Garcia-Mendez, 420 F.3d 454, 456–57 (5th Cir. 2005); United States v.
Morales-Mota, No. 12-40491, --- F. 3d ---, ---, 2013 WL 104935, at *2 (5th Cir.
Jan. 9, 2013) (per curiam) (citing United States v. Joslin, No. 11-40863, 2012 WL
3488717, at *2–*4 (5th Cir. Aug. 14, 2012) (per curiam).
In addition, Hernandez-Salazar objects to the government’s policy of
declining to move for an additional one-level offense-level reduction when the
defendant insists on retaining his right to appeal. As he acknowledges, his claim
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is foreclosed by United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008).
Accordingly, Hernandez-Salazar has demonstrated no plain error.
For the foregoing reasons, we AFFIRM.

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