USA v. Javier Garza-Flore


UNPUBLISHED OPINION FILED.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]

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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