United States v. Jose Gomez

Case: 11-20911 Document: 00512170396 Page: 1 Date Filed: 03/11/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2013
No. 11-20911
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE CARMEN SILVA GOMEZ, also known as Jose Carmen Silva, also known
as Jose Carmen Silva-Gomez, also known as Tranquilin Silva Gomez, also
known as Tranquilin Gomez, also known as Jose Silva,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-423-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Carmen Silva Gomez pleaded guilty to one
count of illegal reentry and was sentenced within the advisory guidelines range
to 70 months in prison. Silva Gomez now appeals the district court’s imposition
of a 16-level enhancement for a prior crime of violence pursuant to § 2L1.2 of the
United States Sentencing Guidelines. Finding no error, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20911 Document: 00512170396 Page: 2 Date Filed: 03/11/2013
No. 11-20911
Silva Gomez contends that his prior conviction for burglary of a habitation
under Texas Penal Code § 30.02(a)(1) does not constitute a crime of violence for
purposes of the § 2L1.2 enhancement. As Silva Gomez concedes, he did not raise
this argument in the district court, so our review is for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Silva Gomez
claims that his prior burglary offense does not constitute the generic offense of
burglary for purposes of § 2L1.2 because he was charged with entry into a
habitation owned by a person with a greater right to possession. He argues that
this “greater right to possession” theory is unique to Texas and makes the
offense broader than generic burglary.
We recently rejected a materially indistinguishable argument. See United
States v. Morales-Mota, F.3d , 2013 WL 104935, at *1-*2 (5th Cir. Jan. 9,
2013). In light of Morales-Mota, the district court did not commit any error,
plain or otherwise, in imposing the enhancement.
The judgment of the district court is AFFIRMED.
2