United States v. Jesus Montalvo Davila

PER CURIAM: * Jesus Leonardo Montalvo Davila pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(2). He contends the district court erred in applying the 16-level erime-of-violence enhancement under Sentencing Guideline § 2L1.2(b)(l)(A)(ii) (2015 ed.), based on his 2012 Texas conviction for burglary of a habitation, in violation of Texas Penal Code § 30.02(a). Although post-Roofcer, the Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51, 128 S.Ct. 586; United States v. Delgado-Martinez, 564 F.3d 750, 751-53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). In United States v. Conde-Castaneda, 753 F.3d 172, 175-77 (5th Cir. 2014), our court concluded: § 30.02(a) was divisible because of the differing elements required for § 30.02(a)(1) and (a)(3); and, a conviction under § 30.02(a)(1), but not under § 30.02(a)(3), qualified as generic burglary. Montalvo claims, however, that Conde-Cas-taneda has been effectively overruled by the Supreme Court’s recent decision in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2253, 195 L.Ed.2d 604 (2016), which held the modified categorical approach cannot apply if the statute lists alternative means, rather than elements. But, in United States v. Uribe, our court held § 30.02(a) remained divisible post- Mathis. 838 F.3d 667, 671 (5th Cir. 2016), cert. denied, 2017 WL 661924, — U.S. -, 137 S.Ct. 1359, 197 L.Ed.2d 542 (2017). Therefore, the modified categorical approach applies, and certain state-court documents may be considered to determine the crime-of-violence enhancement’s applicability vel non. Id.; see U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015 ed.). Montalvo maintains state-court documents do not explicitly state whether he *286 was convicted under § 30.02(a)(1) or (a)(3), the latter of which does not qualify as generic burglary. See Conde-Castaneda, 753 F.3d at 176. Nonetheless, Montalvo pleaded guilty to the state-court indictment, the language of which tracked that of § 30.02(a)(1). A conviction under § 30.02(a)(1) “aligns with the generic offense of burglary, and constitutes a ‘burglary of a dwelling’ under the Sentencing Guidelines”. Uribe, 838 F.3d at 671. Accordingly, the court did not err in applying the crime-of-violence enhancement. See id, AFFIRMED. Footnotes [*] 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.