USA v. Benito Gomez-Jimenez

Filing

UNPUBLISHED OPINION FILED. [16-41620 Affirmed ] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 06/12/2017 for Appellant Benito Gomez-Jimenez; granting motion for summary affirmance filed by Appellant Mr. Benito Gomez-Jimenez [8426373-2] [16-41620]

Case: 16-41620

Document: 00514002362

Page: 1

Date Filed: 05/22/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41620
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 22, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
BENITO GOMEZ-JIMENEZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:16-CR-256-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *

Benito Gomez-Jimenez appeals the 60-month sentence imposed
following his guilty plea and conviction for being found in the United States
without permission, following removal. He contends that the district court
erred by enhancing his sentence under United States Sentencing Guideline §
L1.2(b)(1)(A)(ii) (2015) based on a determination that his conviction for

burglary of a habitation under Texas Penal Code § 30.02 was equivalent to
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41620

Document: 00514002362

Page: 2

Date Filed: 05/22/2017

No. 16-41620

a conviction for the generic offense of “burglary of a dwelling,” which was
enumerated in the application notes accompanying § 2L1.2 as a “crime of
violence.” Gomez-Jimenez argues that, in light of Mathis v. United States,

136 S. Ct. 2243 (2016), § 30.02 defines a single indivisible offense too broad
to meet the generic definition of burglary of a dwelling, and that the district
court erred when it narrowed his offense of conviction using the modified
categorical approach.
In United States v. Conde-Castaneda, 753 F.3d 172, 175-76 (5th Cir.
2014), this court held that § 30.02 is a divisible statute and that courts may
apply the modified categorical approach to determine which of the three
subsections in § 30.02(a) formed the basis of a defendant’s conviction. This
court reaffirmed that decision in United States v. Uribe, 838 F.3d 667, 669-71
(5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017), specifically determining
that Mathis did not alter its prior holding. Although Gomez-Jimenez contends
that Uribe was wrongly decided, he concedes that his argument is foreclosed
by that decision.
Accordingly, Gomez-Jimenez’s motion for summary disposition is
GRANTED and the judgment of the district court is AFFIRMED.

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