IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40987

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARCELO MUNOZ-GUERRERO,

Defendant-Appellant

...........................................................................

Consolidated with No. 12-41020

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARCELO MUNOZ-GUERRERO, also known as Francisco Hernandez,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 5:12-CR-377-1

United States Court of Appeals

Fifth Circuit

F I L E D

April 29, 2013

Lyle W. Cayce

Clerk
No. 12-40987 c/w No. 12-41020

* 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.

2

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Marcelo Munoz-Guerrero (Munoz) pleaded guilty to being found in the

United States illegally after deportation and was sentenced to 51 months in

prison and three years of supervised release. This conviction triggered the

revocation of his supervised release on an earlier conviction for illegal re-entry.

Munoz pleaded true to two violations of the conditions of his supervised release.

The district court sentenced him to 24 months in prison on one violation and to

13 months on the other, to be served concurrently with each other and

consecutive to the 51-month sentence imposed for the new illegal reentry

conviction. Munoz timely noticed his appeal in each case, now consolidated

before this court.

The Government’s motion for summary affirmance is DENIED. Its

alternative motion for an extension of time within which to file a brief is

DENIED as unnecessary as the arguments are adequately addressed in the

Government’s motion and Munoz’s brief.

Munoz challenges the 51-month sentence for the illegal reentry conviction

in Case No. 12-40987. He argues that the district court plainly erred in

imposing a 12-level enhancement for committing a crime of violence, pursuant

to U.S.S.G. § 2L1.2(b)(1)(A)(ii). He argues that his prior Texas burglary of a

dwelling with intent to commit theft was not a crime of violence because Texas

law too broadly defines the “owner” of a habitation as a person with merely

“greater right to possession” than the criminal actor. We review only for plain

error because the issue is raised for the first time on appeal. See United States

v. Ramirez, 557 F.3d 200, 205 (5th Cir. 2009).
No. 12-40987 c/w No. 12-41020

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We recently rejected the same argument in UnitedStates v. Morales–Mota,

704 F.3d 410, 412 (5th Cir. 2013) (affirming a 16–level sentencing enhancement

under § 2L1.2(b)(1)(A)(ii) based on a Texas conviction for burglary of a habitation

under § 30.02(a)). Accordingly, the district court’s application of the 12-level

enhancement was not error, plain or otherwise. The judgment in Case No. 12-

40987 is AFFIRMED. 

Munoz also appeals the revocation sentences imposed in Case No. 12-

41020, arguing that, in light of the district court’s error in applying the 12-level

enhancement, the revocation sentences are plainly unreasonable. Because

Munoz did not object to the reasonableness of his revocation sentences in the

district court, our review is for plain error. See United States v. Whitelaw, 580

F.3d 256, 259-60 (5th Cir. 2009). Revocation sentences that are within the

sentencing range determined under the applicable Sentencing Guidelines policy

statements are presumptively reasonable. UnitedStates v.Lopez-Velasquez, 526

F.3d 804, 809 (5th Cir. 2008). 

To the extent his argument is premised on a finding that the district court

erred in finding that Munoz’s prior conviction was a crime of violence, this

argument necessarily fails. Even assuming arguendo that a 16-level crime of

violence enhancement was improperly applied to his 2006 sentence, Munoz does

not cite any authority for his assertion that this is a factor that the district court

should have considered in determining his revocation sentence. Indeed, Munoz’s

argument is not supported by the relevant statutes or the Sentencing

Guidelines. See 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4(a), p.s.; § 7B1.1, p.s.

Moreover, Munoz may not use his appeal of his revocation sentences to challenge

the underlying sentence. See United States v. Willis, 563 F.3d 168, 170 (5th Cir.

2009). 

Munoz has not shown that the district court plainly erred in determining

the revocation sentences, see Whitelaw, 580 F.3d at 259-60, and he has not

rebutted the presumption that his revocation sentences are substantively
No. 12-40987 c/w No. 12-41020

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reasonable, see Lopez-Velasquez, 526 F.3d at 809. Accordingly, the judgment in

Case No. 12-41020 is AFFIRMED.