USA v. Tomas Galvan-Fuente

Filing

UNPUBLISHED OPINION FILED. [16-40516 Affirmed] Judge: PEH, Judge: ECP, Judge: CH. Mandate pull date is 06/20/2017 for Appellant Tomas Galvan-Fuentes; granting motion for summary affirmance filed by Appellee USA [8327487-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8327487-3] [16-40516]

Case: 16-40516

Document: 00514011974

Page: 1

Date Filed: 05/30/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40516
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 30, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TOMAS GALVAN-FUENTES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-886-1

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Tomas Galvan-Fuentes appeals following his guilty plea conviction and
sentence for illegal reentry after deportation. He contends that the district
court committed reversible plain error by imposing an enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014) based on his prior Texas conviction for
burglary of a habitation. Relying on Mathis v. United States, 136 S. Ct. 2243
(2016), Galvan-Fuentes argues that the Texas burglary statute is broader than

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40516

Document: 00514011974

Page: 2

Date Filed: 05/30/2017

No. 16-40516
the enumerated offense of burglary of a dwelling and that the Texas burglary
statute is not divisible for purposes of applying the modified categorical
approach. Galvan-Fuentes concedes, however, that the issue he raises on
appeal is foreclosed by this court’s decision in United States v. Uribe, 838 F.3d
667 (5th Cir. 2016), cert. denied, 2017 WL 661924 (Mar. 20, 2017) (No. 167969).
The Government agrees that Galvan-Fuentes’s Mathis-based challenge
is foreclosed by Uribe, and it has filed an opposed motion for summary
affirmance. Summary affirmance is proper where, among other things, “the
position of one of the parties is clearly right as a matter of law so that there
can be no substantial question as to the outcome of the case.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
In a pre-Mathis decision, we determined that the Texas burglary statute,
TEX. PENAL CODE ANN. § 30.02(a) (2009), is a divisible statute that is amenable
to application of the modified categorical approach. See United States v. CondeCastaneda, 753 F.3d 172, 176 (5th Cir. 2014). Galvan-Fuentes’s argument, in
reliance on Mathis, that § 30.02(a) is not divisible and, thus, cannot support
application of the modified categorical approach, was squarely rejected in
Uribe, wherein we determined that the provisions of the Texas burglary
statute set forth elements, rather than means, and that Conde-Castaneda had
not been disturbed by Mathis. See Uribe, 838 F.3d at 670-71.
In view of the foregoing, the Government’s motion for summary
affirmance is GRANTED, and the district court’s judgment is AFFIRMED.
The Government’s alternative motion for an extension of time to file a brief is
DENIED.

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