United States v. Darwin Mejia-Guerra

PER CURIAM: * Darwin Jesus Mejia-Guerra pleaded guilty to one count of illegal reentry into the United States after a prior removal in violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced him to 36 months of imprisonment. Mejia-Guerra challenges the application of the 16-level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) based on his prior Texas conviction for burglary of a habitation. First, the district court did not err when it applied the modified categorical approach to his prior conviction, See United States v. Uribe, 838 F.3d 667, 671 (6th Cir. 2016), cert. denied, — U.S. —, 137 S.Ct. 1359, 197 L.Ed.2d 542 (2017); United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014). Second, the Government satisfied its burden in showing the applicability of the § 2L1.2(b)(l)(A)(ii) enhancement and, thus, the district court did not err in relying on the indictment. See United States v. Torres-Diaz, 438 F.3d 529, 535 (5th Cir. 2006); United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997). Finally, Mejia-Guerra avers that the district court violated his due process rights by imposing a sentence that exceeded the statutory maximum under § 1326(a). As he concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-28, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). 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 Footnotes [*] Pursuant to 5th Cir. R, 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R, 47.5.4.