USA v. Francisco Diaz-Sierra

Filing

UNPUBLISHED OPINION FILED. [15-41662 Affirmed ] Judge: CES , Judge: EBC , Judge: LHS Mandate pull date is 05/26/2017 for Appellant Francisco Diaz-Sierra [15-41662]

Case: 15-41662

Document: 00513981153

Page: 1

Date Filed: 05/05/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-41662
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 5, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO DIAZ-SIERRA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-1058-1

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
Francisco Diaz-Sierra pleaded guilty to illegal reentry after removal and
was sentenced to 46 months of imprisonment. On appeal, he argues that the
district court erred by applying the crime-of-violence enhancement in U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (2015) based on his prior Texas conviction for burglary of a
habitation. We review the district court’s interpretation of the Sentencing

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41662

Document: 00513981153

Page: 2

Date Filed: 05/05/2017

No. 15-41662
Guidelines de novo and its findings of fact for clear error. United States v.
Njoku, 737 F.3d 55, 75 (5th Cir. 2013).
Diaz was convicted of burglary under Texas Penal Code § 30.02. Section
30.02 is a divisible statute, and we have held that a violation of § 30.02(a)(1)
constitutes generic burglary of a dwelling for purposes of the crime of violence
enhancement. See United States v. Uribe, 838 F.3d 667, 670-71 (5th Cir. 2016),
cert. denied, 2017 WL 661924 (Mar. 20, 2017) (No. 16-7969); § 2L1.2(b)(1)(A)(ii)
& comment. (n.1(B)(iii)) (2015). Because the state court documents reflect that
Diaz pleaded guilty to an offense under § 30.02(a)(1), the district court did not
err in applying the crime-of-violence enhancement. See Uribe, 838 F.3d at 671.
AFFIRMED.

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