USA v. Javier Garza-Flore

Filing

UNPUBLISHED OPINION FILED. [16-40698 Affirmed ] Judge: EHJ , Judge: JLW , Judge: EBC Mandate pull date is 06/29/2017 for Appellant Javier Garza-Flores; granting motion for summary affirmance filed by Appellee USA [8438668-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8438668-3] [16-40698]

Case: 16-40698

Document: 00514025319

Page: 1

Date Filed: 06/08/2017

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

No. 16-40698
Summary Calendar

FILED
June 8, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER GARZA-FLORES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:14-CR-39-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *

Javier Garza-Flores appeals the sentence imposed following his guilty
plea conviction for illegal reentry after deportation. He contends that the
district court erred in increasing his offense level pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his prior Texas conviction for burglary of a
habitation under Texas Penal Code § 30.02.

Garza-Flores argues, under

Mathis v. United States, 136 S. Ct. 2243 (2016), that the Texas burglary statute

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40698

Document: 00514025319

Page: 2

Date Filed: 06/08/2017

No. 16-40698
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).
The Government has filed an opposed motion for summary affirmance
asserting that Garza-Flores’s arguments are foreclosed by our recent decision
in United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 137 S. Ct.
1359 (2017). 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 Garza-Flores’s Mathis
argument. See Uribe, 838 F.3d at 669-71. Accordingly, the Government’s
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.

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