IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50864

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SELVIN ADAN RODRIGUEZ-LOPEZ, 

Also Known as Jose Martinez, Also Known as Jose Luis Maldonado, 

Also Known as Alexis Rodriguez, Also Known as Alexis Gonzales,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:11-CR-412-1

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

July 12, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-50864

Selvin Rodriguez-Lopez appeals his 82-month sentence for illegal reentry

following deportation. The presentence report calculated the advisory sentencing guideline range based on the treatment of Rodriguez-Lopez’s 2006 Florida

conviction for burglary of a dwelling, under FLA.STAT. ANN. § 810.02, as a crime

of violence (“COV”) for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii)’s 16-level

enhancement. The enhancement yielded a range of 77-96 months. RodriguezLopez objected to the determination that his burglary offense was a COV. 

The district court overruled the objection and imposed a within-guidelines

sentence of 82 months in prison and three years of supervised release. The court

then stated that, even if the enhancement was not applicable, it would impose

the same sentence. The court recognized that the advisory range without the

enhancement was 33-41 months, and it imposed an alternative upwarddeparture guideline sentence of 82 months. 

Rodriguez contends that the court erred in treating the Florida conviction

as a COV. A conviction under § 810.02 is not categorically the equivalent of the

enumerated offense of burglary of a dwelling, because the inclusion of curtilage

in the Florida definition of a dwelling renders the statute outside the “ordinary,

contemporary, common meaning of burglary of a dwelling.” United States v.

Gomez-Guerra, 485 F.3d 301, 303 & n.2, 304 (5th Cir. 2007). Accordingly, to

determine whether a conviction under § 810.02 qualifies as an enumerated COV

under § 2L1.2, a court may consider appropriate adjudicative records. Id.;

United States v. Murillo-Lopez, 444 F.3d 337, 340 (5th Cir. 2006). 

The documents relating to the conviction do not aid in narrowing the definition of dwelling to exclude the curtilage. Thus, under Gomez-Guerra, 485 F.3d

at 303-04, that conviction does not fall within the generic, contemporary meaning of the enumerated “burglary of a dwelling” COV under § 2L1.2. GomezGuerra, 485 F.3d at 303-04. The district court erred when it adjusted RodriguezLopez’s offense level for having a conviction of a COV. See id.

The error, however, doesnot require resentencing. Rodriguez’s alternative

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No. 11-50864

upward-departure sentence, which was not the result of a misapplication of the

guidelines, supplies the court with an independent basis for affirming. See

United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir. 2006); United States v.

Ruiz-Arriaga, 565 F.3d 280, 282 (5th Cir. 2009).

This court reviews criminal sentences for reasonableness in light of the

factors in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 51 (2007);

United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Reasonableness

review, in the context of a departure, requires this court to evaluate both “the

district court’s decision to depart upwardly and the extent of that departure for

abuse of discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.

2006) (internal quotation marks and citation omitted). An upward departure is

not an abuse of discretion if the reasons for it advance the objectives of § 3553-

(a)(2) and are justified by the particular facts. Id.

Given the extent and severity of Rodriguez-Lopez’s criminal history, the

district court did not abuse its discretion when it upwardly departed under

U.S.S.G. § 4A1.3. The court provided permissible and appropriate reasons for

the sentence; in particular, it noted that Rodriguez-Lopez had been convicted of

numerous offenses by the age of thirty and that the court had never seen a rap

sheet as long as his. The court also stated that society needed to be protected

from Rodriguez-Lopez.

The reasons for departure advance the objectives of § 3553(a)(2) and are

justified by the facts. See Zuniga-Peralta, 442 F.3d 347. Additionally, the sentence is within the range of departures upheld by this court. See, e.g., United

States v. Jones, 444 F.3d 430, 433, 442 (5th Cir. 2006); United States v. Smith,

417 F.3d 483, 492 (5th Cir. 2005). 

AFFIRMED.

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