USA v. Jorge Turrubiartes-Gonzalez
UNPUBLISHED OPINION FILED. [16-40328 Affirmed ] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 06/15/2017 for Appellant Jorge Turrubiartes-Gonzalez [16-40328]
Date Filed: 05/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
May 25, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
JORGE TURRUBIARTES-GONZALEZ, also known as Rolando De La Cruz,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-1457-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Jorge Turrubiartes-Gonzalez pleaded guilty to a single-count indictment
charging him with illegal reentry by a previously deported alien in violation of
8 U.S.C. § 1326(a) & (b). On appeal, he argues that the district court erred in
applying the 12-level “crime of violence” enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (2015) based on his prior conviction of burglary of a
habitation in violation of Texas Penal Code § 30.02(a).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 05/25/2017
We review de novo the district court’s interpretation and application of
the Sentencing Guidelines, including its determination that a defendant’s prior
conviction qualifies as a “crime of violence” under § 2L1.2. United States v.
Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011). In United States v. CondeCastaneda, 753 F.3d 172, 176-77 (5th Cir. 2014), we held that § 30.02(a) is a
divisible statute and that a conviction under § 30.02(a)(1) qualifies as a generic
burglary. We recently revisited the holding in Conde-Castaneda in light of
Mathis v. United States, 136 S. Ct. 2243 (2016). United States v. Uribe, 838
F.3d 667, 670 (5th Cir. 2016) cert. denied, 2017 WL 661924 (Mar. 20, 2017) (No.
16-7969). In Uribe, we decided that § 30.02(a) “is elements-based, it is divisible
and the modified categorical approach applies.” Id. at 671. The state court
documents clearly show that Turrubiartes-Gonzalez was convicted under
subsection (a)(1) of the Texas burglary statute. Accordingly, the district court
properly applied the 12-level “crime of violence” enhancement under
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