United States v. Carlos Montelongo-Puente ( 2019 )

Case: 18-20204 Document: 00514863405 Page: 1 Date Filed: 03/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-20204 FILED
Summary Calendar March 7, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS ALBERTO MONTELONGO-PUENTE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CR-493-1
Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
Carlos Alberto Montelongo-Puente pleaded guilty to being found
unlawfully present in the United States following a deportation that was
subsequent to a conviction for an aggravated felony. The district court used
the 2014 Sentencing Guidelines to calculate the applicable guidelines
sentencing range and sentenced him within that range to 57 months of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20204 Document: 00514863405 Page: 2 Date Filed: 03/07/2019
No. 18-20204
imprisonment to be followed by three years of supervised release. This appeal
timely followed.
At issue here is the application of a 16-level increase to Montelongo-
Puente’s offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the
determination that his prior Texas conviction for aggravated robbery is a crime
of violence for purposes of that Guideline. Montelongo-Puente acknowledges
our previous holding in United States v. Santiesteban-Hernandez, 469 F.3d
376, 380-81 (5th Cir. 2006), abrogated on other grounds by United States v.
Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc), that Texas robbery falls
within the generic definition of robbery and thus qualifies as the enumerated
offense of robbery for purposes of § 2L1.2’s 16-level enhancement. He argues,
though, that the Texas Court of Criminal Appeals, in Howard v. State, 333
S.W.3d 137 (Tex. Crim. App. 2011), has since interpreted the Texas offense of
robbery so broadly that it no longer fits the generic definition of robbery. We
have recently rejected this argument and reaffirmed the holding of
Santiesteban-Hernandez. See United States v. Nunez-Medrano, 751 F. App’x
494, 498–500 (5th Cir. 2018). While Nunez-Medrano is not binding, it is
persuasive. See 5TH CIR. R. 47.5.4; Ballard v. Burton, 444 F.3d 391, 401 & n.7.
Because the Texas offense of aggravated robbery qualifies as generic
robbery, the district court did not err in applying § 2L1.2(b)(1)(A)’s 16-level
enhancement here. In light of this conclusion, we need not address
Montelongo-Puente’s argument that Texas aggravated robbery does qualify for
the enhancement because it does not have as an element the use, attempted
use, or threatened use of physical force against the person of another.
AFFIRMED.
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