United States v. Rolando Villarreal ( 2013 )

Case: 12-41117 Document: 00512211202 Page: 1 Date Filed: 04/17/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 17, 2013
No. 12-41117
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROLANDO VILLARREAL,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1377-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Rolando Villarreal pled guilty to one count of being a felon in possession
of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Because
Villarreal had three prior violent felony convictions, his sentence was enhanced
pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). He
was sentenced to 188 months’ imprisonment and two years of supervised release.
Villarreal argues the district court erred by imposing the enhanced
penalties under the ACCA based on his prior Texas burglary conviction. He
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41117 Document: 00512211202 Page: 2 Date Filed: 04/17/2013
No. 12-41117
argues that Texas law defines the owner of a habitation as a person with merely
a greater right to possession than the criminal actor and that this places the
Texas crime outside the generic definition of burglary of a dwelling. This court
recently rejected an indistinguishable argument in United States v. Joslin, 487
F. App’x 139, 142-43 (5th Cir. 2012). We find Joslin instructive and persuasive.
See United States v. Morales-Mota, 704 F.3d 410, 411-12 (5th Cir. 2013)
(applying plain-error review). The district court did not err in applying the
ACCA in this case.
In an argument he concedes is foreclosed, Villarreal argues the
enhancement under the ACCA could not apply to him because the factual
predicate, his three prior violent felonies, were not charged in the indictment,
not admitted, and not proved to a jury. The ACCA “does not create a separate
offense but is merely a sentence enhancement provision.” United States v.
White, 465 F.3d 250, 254 (5th Cir. 2006) (quoting United States v. Stone, 306
F.3d 241, 243 (5th Cir. 2002)) (brackets and quotation marks omitted).
Consequently, “‘neither the statute nor the Constitution requires a jury finding
on the existence of the three felony convictions required for the enhancement.’”
Id. (quoting Stone, 306 F.3d at 243).
Villarreal argues that Section 922(g) does not require a substantial effect
on interstate commerce and is, therefore, unconstitutional on its face and as
applied. As he concedes, his argument is foreclosed by this court’s precedent.
See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
Finally, Villarreal asserts that the district court plainly erred by
impermissibly delegating the authority to order him to participate in mental
health, drug treatment, and anger management programs as deemed necessary
by his probation officer. He concedes that his argument is foreclosed. See
United States v. Bishop, 603 F.3d 279, 282 (5th Cir. 2010); United States v.
Rodriguez, 558 F.3d 408, 414-17 (5th Cir. 2009).
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No. 12-41117
The district court’s judgment is AFFIRMED. The Government’s motion
for summary affirmance and its alternative motion for an extension of time to
file a brief are DENIED.
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