USA v. Robert Bahena, Jr.


UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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