United States v. Salvador Almazan-Martinez

PER CURIAM: * Salvador Almazan-Martinez pleaded guilty to violating 8 U.S.C. § 1326 by illegally reentering the United States. Finding that Almazan-Martinez had a prior Texas conviction for burglary of a habitation, the district court enhanced his base offense level because he had been convicted of a felony crime of violence. 1 The court sentenced Almazan-Martinez to a below-guidelines term of 48 months’ imprisonment. In the district court, Almazan-Martinez contended that the enhancement was improper because Texas’s definition of habitation was broader than the generic concept of dwelling encompassed by the guidelines and thus his conviction was not for a crime of violence. Almazan-Mar-tinez has not reiterated that argument on appeal; he instead contends that his Texas crime was not even burglary. He asserts the government did not show that he did *440 not consider himself an invitee on the premises or that he intended to take anything other than items belonging to him. Because the arguments Almazan-Mar-tinez now advances were not first presented to the district court, our review is for plain error only. 2 To demonstrate plain error, Almazan-Martinez must show a forfeited error that is obvious and that affects his substantial rights. 3 If he makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. 4 The guidelines provide for an increase of 16 levels in the offense level for unlawfully entering or remaining in the United States if the defendant was previously convicted of a crime of violence. 5 The commentary specifically enumerates several .offenses that qualify as crimes of violence, including the burglary of a dwelling. 6 Under Texas law, a person commits burglary if he enters a building closed to the public, or a habitation, without the consent of the owner and with the intent to commit a felony, theft, or an assault. 7 Burglary of a habitation under Texas law qualifies as a crime of violence as defined in the guidelines. 8 In determining whether a prior offense is a crime of violence, we look to the elements of the offense as defined by statute rather than to the facts of the defendant’s conduct. 9 In making that determination, we may consider certain adjudicative records, such as the state indictment and the state court judgment of conviction. 10 Almazan-Martinez’s Texas indictment charged that he had “unlawfully, with intent to commit theft, enter[ed] a habitation owned by” another and without that person’s consent. This matches the language used to define the Texas crime of burglary of a habitation — a crime of violence— which proscribes entry into “a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault.” 11 Further, at rearraignment Almazan-Mar-tinez admitted the truth of the Government’s recitation of the factual basis for his plea, which included a description of his Texas conviction for the offense of burglary of a habitation with intent to commit theft. The district court did not commit error, much less plain error, in imposing Alma-zan-Martinez’s sentence. 12 The judgment is 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. [1] See U.S.S.G. § 2L1.2(b)(l)(A)(ii). [2] See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009), cert, denied, - U.S. -, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). [3] See Puckett v. United States, -U.S.-, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). [4] Id. [5] § 2L1.2(b)(l)(A)(ii). [6] § 2L1.2 cmt. n. l(B)(iii). [7] See Tex. Penal Code § 30.02(a)(1). [8] United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005). [9] United States v. Carbajal-Diaz, 508 F.3d 804, 807-08 (5th Cir.2007), cert, denied, - U.S. -, 128 S.Ct. 1731, 170 L.Ed.2d 533 (2008). [10] See United States v. Garcia-Arellano, 522 F.3d 477, 480-81 (5th Cir.2008), cert, denied, -U .S.-, 129 S.Ct. 353, 172 L.Ed.2d 138 (2008). [11] Tex. Penal Code § 30.02(a)(1). [12] See Puckett, 129 S.Ct. at 1429.