USA v. Robert Bahena, Jr.

Filing

UNPUBLISHED OPINION FILED. [16-50818 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 06/08/2017 for Appellant Robert Bahena Jr.; granting motion for summary affirmance filed by Appellee USA [8378894-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8378894-3] [16-50818]

Case: 16-50818

Document: 00513997528

Page: 1

Date Filed: 05/18/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-50818
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 18, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT BAHENA, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:16-CR-21-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Robert Bahena, Jr., appeals the sentence imposed following his guilty
plea conviction for possession with intent to distribute methamphetamine. He
contends that the district court plainly erred by sentencing him as a career
offender pursuant to U.S.S.G. § 4B1.1 based on his Texas conviction for
burglary of a habitation under Texas Penal Code § 30.02. Bahena argues that

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50818

Document: 00513997528

Page: 2

Date Filed: 05/18/2017

No. 16-50818
this conviction does not qualify as a crime of violence under § 4B1.1 in light of
Mathis v. United States, 136 S. Ct. 2243 (2016).
The Government has filed an opposed motion for summary affirmance
asserting that Bahena’s arguments are foreclosed by our recent decision in
United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 2017 WL

661924 (Mar. 20, 2017) (No. 16-7969). 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 Bahena’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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