USA v. Roman Saldivar-Vasquez
UNPUBLISHED OPINION FILED. [16-40484 Affirmed] Judge: CDK , Judge: JLD , Judge: GJC. Mandate pull date is 05/31/2017 for Appellant Roman Saldivar-Vasquez [16-40484]
Date Filed: 05/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
May 10, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-1039-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Roman Saldivar-Vasquez appeals the sentence imposed following his
guilty plea conviction for illegal reentry after deportation following a felony
conviction in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that the
district court plainly erred in assessing him a 16-level enhancement pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) due to his three prior Texas felony
convictions for burglary of a habitation, in violation of TEX. PENAL CODE
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 05/10/2017
§ 30.02(a)(1), which the district court characterized as crimes of violence. See
United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014) (holding
that § 30.02(a) is divisible and reiterating that offenses under § 30.02(a)(1)
qualify as generic burglary). Saldivar-Velasquez argues that his convictions
do not qualify as crimes of violence under § 2L1.2(b)(1)(A)(ii) in light of Mathis
v. United States, 136 S. Ct. 2243 (2016).
Because Saldivar-Vasquez did not object to the 16-level enhancement,
our review is for plain error. United States v. Chavez–Hernandez, 671 F.3d
494, 497 (5th Cir. 2012). To establish plain error, Saldivar-Vasquez must
demonstrate a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
Saldivar-Vasquez makes such a showing, this court has the discretion to
correct the error if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
This court recently revisited the holding in Conde-Castaneda in light of
Mathis. See 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, the court
decided that § 30.02(a) “is elements-based, it is divisible and the modified
categorical approach applies.” Uribe, 838 F.3d at 671. Thus, Conde-Castaneda
remains binding precedent, and the district court did not err in treating
Saldivar-Vasquez’s Texas burglary convictions under § 30.02(a)(1) as crimes of
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