USA v. Alfredo Alvarez-Soto


UNPUBLISHED OPINION FILED.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]

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 2

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