United States v. Marcos Ramirez-Cantu

Case: 16-50712 Document: 00514008924 Page: 1 Date Filed: 05/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50712
Fifth Circuit
FILED
Summary Calendar May 26, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MARCOS RAMIREZ-CANTU,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-1135-1
Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Marcos Ramirez-Cantu appeals following his guilty plea conviction and
sentence for illegal reentry after deportation. He contends that the district
court committed reversible plain error by imposing an enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his prior Texas convictions for
burglary of a habitation. Relying on Mathis v. United States, 136 S. Ct. 2243
(2016), as well as on Texas jurisprudence, Ramirez-Cantu argues that the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50712 Document: 00514008924 Page: 2 Date Filed: 05/26/2017
No. 16-50712
Texas burglary statute is broader than the enumerated offense of burglary of
a dwelling and that the Texas burglary statute is not divisible for purposes of
applying the modified categorical approach. Ramirez-Cantu concedes,
however, that the issue he raises on appeal is foreclosed by this court’s decision
in United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 2017 WL
661924 (Mar. 20, 2017) (No. 16-7969).
The Government agrees that Ramirez-Cantu’s Mathis-based challenge
is foreclosed by Uribe, and it has filed an unopposed motion for summary
affirmance. Summary affirmance is proper where, among other things, “the
position of one of the parties is clearly right as a matter of law so that there
can be no substantial question as to the outcome of the case.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
In a pre-Mathis decision, we determined that the Texas burglary statute,
TEX. PENAL CODE ANN. § 30.02 (2009), is a divisible statute that is amenable
to application of the modified categorical approach. See United States v. Conde-
Castaneda, 753 F.3d 172, 176 (5th Cir. 2014). Ramirez-Cantu’s argument, in
reliance on Mathis, that § 30.02(a) is not divisible and, thus, cannot support
application of the modified categorical approach, was squarely rejected in
Uribe, wherein we determined that the provisions of the Texas burglary
statute set forth elements, rather than means, and that Conde-Castaneda had
not been disturbed by Mathis. See Uribe, 838 F.3d at 670-71.
In view of the foregoing, the motion for summary affirmance is
GRANTED, and the district court’s judgment is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.
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