USA v. Eden Perez

Filing

UNPUBLISHED OPINION FILED. [12-41320 Affirmed ] Judge: JLW , Judge: JWE , Judge: JEG Mandate pull date is 07/08/2013 for Appellant Eden Perez; granting motion for summary affirmance filed by Appellant Mr. Eden Perez [7291850-2] [12-41320]

Case: 12-41320

Document: 00512276023

Page: 1

Date Filed: 06/17/2013

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

FILED
No. 12-41320
Summary Calendar

June 17, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDEN PEREZ,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1521-1

Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Eden Perez appeals the 92-month, within-guidelines sentence imposed
following his guilty plea conviction for being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The presentence report, which
was adopted by the district court, calculated Perez’s base offense level pursuant
to U.S.S.G. § 2K2.1(a)(4)(A) because he had a prior Texas conviction for burglary
of a habitation, which constituted an enumerated “crime of violence,” namely
burglary of a dwelling, under U.S.S.G. § 4B1.2(a)(2). Perez argues that his base
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41320

Document: 00512276023

Page: 2

Date Filed: 06/17/2013

No. 12-41320
offense level was improperly calculated because Texas law defines the owner of
a habitation as a person with merely a greater right to possession than the
criminal actor and that this places the Texas crime outside the generic definition
of burglary of a dwelling.
In United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir.), cert. denied,
2013 WL 1473651 (May 13, 2013), we rejected this argument on plain error
review, affirming a sentencing enhancement for a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a Texas conviction for burglary of a
habitation under Texas Penal Code § 30.02(a)(1). We noted that we had recently
rejected on de novo review a materially indistinguishable argument in United
States v. Joslin, 487 F. App’x 139, 141-43 (5th Cir. 2012), cert. denied, 2013 WL
991511 (Apr. 15, 2013), holding that, under the Armed Career Criminal Act, a
conviction for Texas burglary of a habitation under § 30.02(a)(1) constitutes
generic burglary, notwithstanding the “greater right to possession” theory.
Morales-Mota, 704 F.3d at 412.
While Perez concedes that his argument should be reviewed for plain error
and that it is foreclosed by our precedent in Morales-Mota, he wishes to preserve
his argument that Joslin was wrongly decided for Supreme Court review.
Because one panel of this court may not overrule the decision of another absent
an en banc or superseding Supreme Court decision, see United States v.
Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002), Perez’s argument that the
“greater right to possession” definition makes Texas burglary broader than
generic burglary is foreclosed by Morales-Mota. Perez’s motion for summary
disposition is GRANTED. The district court’s judgment is AFFIRMED.

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