USA v. Jorge Bacio-Gonzale

Filing

UNPUBLISHED OPINION FILED. [16-40663 Affirmed] Judge: EGJ, Judge: JES, Judge: JEG. Mandate pull date is 06/22/2017 for Appellant Jorge Bacio-Gonzales; granting motion for summary affirmance filed by Appellee USA [8325726-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8325726-3] [16-40663]

Case: 16-40663

Document: 00514016100

Page: 1

Date Filed: 06/01/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-40663
Summary Calendar

FILED
June 1, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.

JORGE BACIO-GONZALES, also known as Jorge Bacio-Gonzalez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-894-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Jorge Bacio-Gonzales appeals the sentence imposed following his guilty
plea conviction for reentry of a deported alien. He contends that the district
court

erred

in

increasing

his

offense

level

pursuant

to

U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) (2015) based on his prior Texas felony convictions for
burglary of a habitation under Texas Penal Code § 30.02(a). Bacio-Gonzales
argues, under Mathis v. United States, 136 S. Ct. 2243 (2016), that the Texas

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40663

Document: 00514016100

Page: 2

Date Filed: 06/01/2017

No. 16-40663
burglary statute is not divisible and that not every violation of § 30.02(a)
qualifies as a crime of violence under § 2L1.2(b)(1)(A)(ii) (2015).
The Government has filed an opposed motion for summary affirmance
asserting that Bacio-Gonzales’s arguments are foreclosed by our recent
decision in United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied,
2017 WL 661924 (Mar. 20, 2017) (No. 16-7969).

In the alternative, the

Government requests an extension of time in which to file a brief on the merits.
The Government is correct that Uribe forecloses Bacio-Gonzales’s Mathis
argument.

See Uribe, 838 F.3d at 669-71.

Accordingly, the motion for

summary affirmance is GRANTED, the alternative motion for an extension of
time to file a brief is DENIED, and the judgment of the district court is
AFFIRMED.

2