USA v. Hermelindo Segundo

Filing

UNPUBLISHED OPINION FILED. [15-41593 Affirmed ] Judge: RHB , Judge: CH , Judge: SAH Mandate pull date is 05/15/2017 for Appellant Hermelindo Segundo [15-41593]

Case: 15-41593

Document: 00513965679

Page: 1

Date Filed: 04/24/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-41593
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 24, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
HERMELINDO SEGUNDO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-1001-1

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Hermelindo Segundo was sentenced to 70 months’ imprisonment,
following his guilty plea to illegal reentry, in violation of 8 U.S.C. §§ 1326(a),
(b). He contends the district court erred in applying the 16-level crime-ofviolence enhancement under the Sentencing Guidelines in effect at the time of
his sentencing, based on his prior Texas conviction for burglary of a habitation.
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015 ed.).

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
Greatbe published and is not precedent except under the limited circumstances set forth in
5th Cir. R. 47.5.4.
*

Case: 15-41593

Document: 00513965679

Page: 2

Date Filed: 04/24/2017

No. 15-41593
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.

E.g., United States v. Cisneros-

Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
In 2008, Segundo was convicted of burglary of a habitation, in violation
of Texas Penal Code § 30.02(a). Because § 30.02(a) is divisible, the court, under
the modified categorical approach, may consider certain state documents. See
United States v. Uribe, 838 F.3d 667, 670–71 (5th Cir. 2016), cert. denied, 2017
WL 661924 (20 Mar. 2017).
These documents show Segundo was convicted under § 30.02(a)(1),
which constitutes generic burglary of a dwelling under the Guidelines. Id.;
United States v. Conde-Castaneda, 753 F.3d 172, 178–79 (5th Cir. 2014).
Accordingly, the court did not err in applying the enhancement. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (2015 ed.); Uribe, 838 F.3d at 671.
AFFIRMED.

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