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UNPUBLISHED OPINION FILED.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]

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Case: 16-40484 Document: 00513987130 Page: 1 Date Filed: 05/10/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-40484 Summary Calendar FILED May 10, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ROMAN SALDIVAR-VASQUEZ, Defendant-Appellant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-40484 Document: 00513987130 Page: 2 Date Filed: 05/10/2017 No. 16-40484 § 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 violence. AFFIRMED. 2

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