USA v. Marcos Ramirez-Cantu


UNPUBLISHED OPINION FILED. [16-50712 Affirmed] Judge: PEH, Judge: ECP, Judge: SAH. Mandate pull date is 06/16/2017 for Appellant Marcos Ramirez-Cantu; granting motion for summary affirmance filed by Appellee USA [8421330-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8421330-3] [16-50712]

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Case: 16-50712 Document: 00514008924 Page: 1 Date Filed: 05/26/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-50712 Summary Calendar United States Court of Appeals Fifth Circuit FILED May 26, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MARCOS RAMIREZ-CANTU, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:15-CR-1135-1 Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Marcos Ramirez-Cantu appeals following his guilty plea conviction and sentence for illegal reentry after deportation. He contends that the district court committed reversible plain error by imposing an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his prior Texas convictions for burglary of a habitation. Relying on Mathis v. United States, 136 S. Ct. 2243 (2016), as well as on Texas jurisprudence, Ramirez-Cantu argues that the 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-50712 Document: 00514008924 Page: 2 Date Filed: 05/26/2017 No. 16-50712 Texas burglary statute is broader than the enumerated offense of burglary of a dwelling and that the Texas burglary statute is not divisible for purposes of applying the modified categorical approach. Ramirez-Cantu concedes, however, that the issue he raises on appeal is foreclosed by this court’s decision in United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 2017 WL 661924 (Mar. 20, 2017) (No. 16-7969). The Government agrees that Ramirez-Cantu’s Mathis-based challenge is foreclosed by Uribe, and it has filed an unopposed motion for summary affirmance. Summary affirmance is proper where, among other things, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). In a pre-Mathis decision, we determined that the Texas burglary statute, TEX. PENAL CODE ANN. § 30.02 (2009), is a divisible statute that is amenable to application of the modified categorical approach. See United States v. CondeCastaneda, 753 F.3d 172, 176 (5th Cir. 2014). Ramirez-Cantu’s argument, in reliance on Mathis, that § 30.02(a) is not divisible and, thus, cannot support application of the modified categorical approach, was squarely rejected in Uribe, wherein we determined that the provisions of the Texas burglary statute set forth elements, rather than means, and that Conde-Castaneda had not been disturbed by Mathis. See Uribe, 838 F.3d at 670-71. In view of the foregoing, the motion for summary affirmance is GRANTED, and the district court’s judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED. 2

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