U.S. Court of Appeals for the Fifth Circuit, 2013

United States v. Arnold Avellaneda

United States v. Arnold Avellaneda
U.S. Court of Appeals for the Fifth Circuit · Decided March 5, 2013 · Wiener, Elrod, Graves
532 F. App'x 473

United States v. Arnold Avellaneda

Opinion

PER CURIAM: *

Arnold Avila Avellaneda appeals the sentence imposed following his guilty plea conviction for illegal reentry into the Unit *474 ed States by a previously deported alien after an aggravated felony conviction. He argues that the district court plainly erred in imposing a 16-level crime of violence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) based on his Texas conviction for burglary of a habitation with intent to commit theft. He contends that because his conviction falls under Texas’s unique “greater right to possession” theory, it does not constitute a generic burglary conviction under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and, therefore, it was not a conviction for burglary of a dwelling under § 2L1.2. Because Avila Avellaneda did not raise this objection in the district court, review is limited to plain error. See United States v. Chavez-Hernandez, 671 F.3d 494, 497-99 (5th Cir. 2012); see also Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

We recently rejected this argument in United States v. Morales-Mota, 704 F.3d 410 (5th Cir. 2013). Accordingly, pursuant to Morales-Mota, the district court’s application of the 16-level enhancement in this case was proper. See id.

AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *474 the limited circumstances set forth in 5th Cir R. 47.5.4.

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