USA v. Alfredo Alvarez-Soto

Filing

UNPUBLISHED OPINION FILED. [12-41316 Affirmed ] Judge: JES , Judge: ECP , Judge: SAH Mandate pull date is 08/02/2013 for Appellant Alfredo Alvarez-Soto; granting motion for summary affirmance filed by Appellee USA [7315693-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [7315693-3] [12-41316]

Case: 12-41316

Document: 00512306363

Page: 1

Date Filed: 07/12/2013

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

FILED
July 12, 2013

No. 12-41316
Summary Calendar

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALFREDO ALVAREZ-SOTO,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1829-1

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Alfredo Alvarez-Soto appeals his conviction and sentence for possession
with intent to distribute more than 100 kilograms of marijuana. He asserts
that the district court plainly erred in imposing a career offender enhancement
under U.S.S.G. § 4B1.1 because his prior Texas burglary of a habitation
offenses were not crimes of violence under U.S.S.G. § 4B1.2(a)(2). He contends
that the Texas offense is broader than generic burglary and, therefore, not
*

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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-41316

Document: 00512306363

Page: 2

Date Filed: 07/12/2013

No. 12-41316
“burglary of a dwelling” under § 4B1.2(a)(2), because Texas defines “owner” to
include a person who has “a greater right to possession of the property than the
actor.” Our precedent forecloses this argument. See United States v. MoralesMota, 704 F.3d 410, 412 (5th Cir. 2013).
Also foreclosed is Alvarez-Soto’s argument that, in light of FloresFigueroa v. United States, 556 U.S. 646 (2009), the district court plainly erred
in accepting his guilty plea without sufficient proof that he knew the type and
quantity of the controlled substance involved. See United States v. Betancourt,
586 F.3d 303, 308-09 (5th Cir. 2009).
Alvarez-Soto concedes that his arguments are foreclosed and raises them
to preserve them for further review. The Government’s motion for summary
affirmance is GRANTED, and the judgment of the district court is AFFIRMED.
The Government’s alternative motion for an extension of time to file an
appellate brief is DENIED as unnecessary.

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