United States v. Edgar Gonzales , 508 F. App'x 304 ( 2013 )

Case: 12-20237 Document: 00512116609 Page: 1 Date Filed: 01/17/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 17, 2013
No. 12-20237
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDGAR SANTANA CARDENA GONZALES, also known as Cornelio Martinez
Espinoza, also known as Edgar Santana Gonzalez Cardenas, also known as
Edgar Santana Cardenas-Gonzalez, also known as Edgar Santana Cardenas-
Gonzales, also known as Edgar Santana Cardenas, also known as Reynaldo
Garza-Medina, also known as Eladio Vasquez, also known as Edgar Cardenas
Gonzalez, also known as Reynaldo Garza Medina, also known as Edgar Gonzalez
Cardenas, also known as Edgar Cardenas Gonzales, also known as Cornelio
Espinoza Martinez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-818-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Edgar Santana Cardenas Gonzales pleaded guilty, without the benefit of
a plea agreement, to illegal reentry by a previously deported alien after an
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20237 Document: 00512116609 Page: 2 Date Filed: 01/17/2013
No. 12-20237
aggravated felony. The probation officer calculated a total offense level of 22,
which included a 12-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based
on Cardenas Gonzales’s prior Texas conviction for burglary of a habitation.
Cardenas Gonzales objected to the 12-level enhancement on the grounds that
Texas’s burglary of a habitation offense does not meet the generic definition of
burglary of a dwelling because a person may be convicted of burglary in Texas
if he enters onto property without the consent of another person who has a
greater right to possession of the property. At sentencing, the district court
overruled the objection.
On appeal, Cardenas Gonzales challenges his sentence. We review
sentences for reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). We
first determine whether the district court committed any significant procedural
error. Id. If we find procedural error, we will remand unless the proponent of
the sentence shows the error is harmless, i.e., that it did not affect the district
court’s selection of the sentence. United States v. Delgado-Martinez, 564 F.3d
750, 753 (5th Cir. 2009).
Cardenas Gonzales argues that Texas’s burglary of a habitation offense
does not meet the generic definition of burglary of a dwelling and thus does not
constitute a crime of violence. If the statute’s definition of an offense is broader
than the generic definition, then that offense cannot serve as a predicate for the
adjustment. United States v. Sanchez, 667 F.3d 555, 561 (5th Cir. 2012). This
court has held that burglary of a habitation under § 30.02(a)(1) of the Texas
Penal Code, the statute Cardenas Gonzales was convicted under, constitutes
burglary of a dwelling and supports an enhancement under § 2L1.2. United
States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005). According to
Cardenas Gonzales, because a person can be convicted of burglary of a habitation
even if he has a legitimate right to possess the property, the Texas statute is
broader than the generic definition of burglary of a dwelling. We recently
rejected a materially indistinguishable argument in United States v. Joslin, No.
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No. 12-20237
11-40863, 2012 WL 3488717, *4 (5th Cir. Aug. 14, 2012), reasoning that
“[m]erely maintaining an inferior possessory interest in a habitation does not
extinguish the potential violence that may result when a person enters a
habitation with the intent to commit theft.” Id. Although Joslin is unpublished,
we find it persuasive. See United States v. Pino Gonzalez, 636 F.3d 157, 160 (5th
Cir.), cert. denied, 132 S. Ct. 178 (2011).
AFFIRMED.
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