IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20334

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GARRY EDGAR DEL ANGEL,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CR-632-1

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Garry Edgar Del Angel (Del Angel) appeals the 23-month sentence 

imposed following his guilty plea conviction for illegal reentry. He contends 

that the district court erred by imposing the eight-level aggravated felony 

enhancement under U.S.S.G. § 2L1.2(b)(1)(C) based on a finding that his 2011 

Texas felony convictions for theft were aggravated felonies under 8 U.S.C. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 2, 2016

Lyle W. Cayce

Clerk

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No. 15-20334

2

§ 1101(a)(43)(G). Del Angel argues that the Texas theft statute encompasses 

conduct broader than the generic, contemporary definition of theft because it 

includes theft by deception, which can be committed by the appropriation of 

property with the owner’s consent, and we have defined generic theft as the 

taking of property without the owner’s consent. He concedes that this issue is 

foreclosed by United States v. Rodriguez-Salazar, 768 F.3d 437, 438 (5th Cir. 

2014), in which we held that the Texas theft statute, Texas Penal Code § 31.03, 

does not deviate from the generic crime of theft. However, Del Angel contends 

that Rodriguez-Salazar conflicts with our earlier decision in Martinez v. 

Mukasey, 519 F.3d 532, 540-41 (5th Cir. 2008), in which we held that the 

federal bank fraud statute does not meet the generic definition of theft. He 

asserts that, under the rule of orderliness, Martinez is the governing rule of 

decision for this issue. Del Angel further maintains the district court’s error 

was not harmless because the adjusted advisory guidelines range would have 

been anywhere from two to eight months less than the sentence imposed by 

the district court.

In Rodriguez-Salazar, we specifically addressed any possible conflicts 

with our earlier decision in Martinez. Rodriguez-Salazar, 768 F.3d at 438. We 

reiterated our holding in Martinez and emphasized that the question of a theft 

crime was not before this court in that case and, therefore, Martinez was not 

controlling precedent. Id. In light of this distinction and our analysis of 

consent in Rodriguez-Salazar, Del Angel has failed to show that we violated 

the rule of orderliness by not adhering to our previous holding in Martinez. See 

id.

The Government has moved for summary affirmance. Summary 

affirmance is not appropriate, and the Government’s motion is DENIED. See 

United States v. Holy Land Found. for Relief and Dev., 445 F.3d 771, 781 (5th 

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3

Cir. 2006). The Government’s alternative motion for an extension of time to 

file a reply brief is also DENIED. The judgment of the district court is 

AFFIRMED. 

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