USA v. Rafael Mondragon

Filing

UNPUBLISHED OPINION FILED. [16-40666 Affirmed ] Judge: JLW , Judge: JLD , Judge: CH. Mandate pull date is 03/22/2017 for Appellant Rafael Mondragon; denying as moot motion for summary affirmance filed by Appellee USA [8415434-2] [16-40666]

Case: 16-40666

Document: 00513893417

Page: 1

Date Filed: 03/01/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40666

United States Court of Appeals
Fifth Circuit

FILED
UNITED STATES OF AMERICA,
Plaintiff - Appellee

March 1, 2017
Lyle W. Cayce
Clerk

v.
RAFAEL MONDRAGON,
Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-1405-1
Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant Rafael Mondragon, convicted of violating 8 U.S.C. § 1326(a)
and (b)(2) following a guilty plea, challenges his 58-month prison sentence. We
AFFIRM.
Under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), a
defendant who is convicted of illegal reentry receives a sixteen-level
enhancement to his base offense level if he was previously deported after being

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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No. 16-40666
convicted of a felony that is a crime of violence. Relevant to this case, the
commentary to this section provides that “crime of violence” includes burglary
of a dwelling.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Mondragon’s presentence

report (“PSR”) assessed a sixteen-level enhancement to his offense level under
U.S.S.G. § 2L1.2(b)(1) because of his prior burglary conviction under Texas
Penal Code § 30.02(a). 1 The resulting Guidelines range was fifty-seven to
seventy-one months. The district court overruled Mondragon’s objection to the
enhancement and sentenced Mondragon to fifty-eight months of imprisonment
and two years of supervised release.
On appeal, Mondragon maintains that the sentencing enhancement was
assessed in error because (1) Texas burglary is broader than generic burglary
and (2) the court cannot use the modified categorical approach because the
statute is not divisible. These arguments fail. We have previously held that
Texas Penal Code § 30.02(a) is divisible and recently reaffirmed this holding
in the wake of Mathis v. United States, 136 S. Ct. 2243 (2016). See United
States v. Uribe, 838 F.3d 667, 669–71 (5th Cir.) (citing, inter alia, United States
v. Conde-Castaneda, 753 F.3d 172, 175–79 (5th Cir. 2014)), reh’g denied (5th
Cir. 2016). Accordingly, Mondragon, who was convicted under Texas Penal
Code § 30.02(a)(1), qualified for the sentencing enhancement. See CondeCastaneda, 753 F.3d at 175–79.
Additionally, even if there was an error, it was harmless. See FED. R.
CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”). At the sentencing hearing, counsel
for the defendant stated that, without the enhancement, the Guidelines range
would have been fifteen to twenty-one months. The government stated that,
should that lower range apply, it would have sought an above-Guidelines range

1

The PSR used the 2015 version of the Guidelines.

2

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based in part on the under-representation of Mondragon’s criminal history. In
pronouncing the fifty-eight month sentencing, the district judge stated that she
was aware of both ranges and “d[idn]’t know if [she] can make [her]self any
clearer that [her] sentence would be the same having considered everything
before [her] and both applicable ranges.” Accordingly, any error was harmless.
See United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (“We have
held that a guidelines calculation error is harmless where the district court has
considered the correct guidelines range and has stated that it would impose
the same sentence even if that range applied.”).
AFFIRMED. The motion for summary affirmance is denied as moot.

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