### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D April 29, 2013 Ly l e W . Cay ce Clerk Case: 12-40987 Document: 00512223661 Page: 1 Date Filed: 04/29/2013No. 12-40987 c/w No. 12-41020

Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM: * Marcelo Munoz-Guerrero (Munoz) pleaded guilty to being found in the U n ite d S ta te s ill e g a l ly a fter deportation a nd was sentenced to 51 months in prison and three years of supervised release. T his conviction triggered the revocation of his supervised release on an e arlier conviction for illegal re-entry. Munoz pleaded true to t wo violations of the conditions of his s u pervised release. The d istrict co u rt s entenced him to 24 months in prison on one violation and to 13 months on the other, to be served concurrently w i th each other and consecutive to the 51-month sentence imposed for th e new i llegal reentry conviction. Munoz timely n o t i c e d h i s appeal in e ach case, now consolidated before this court. The Government’s m o t i o n for summary affirmance is D ENIED. Its alterna tive motion for a n extension of time within which to file a brief is DENIED as unnecessary as t h e a r guments a re adequately addressed in the Government’s motion and Munoz’s brief. Munoz challenges the 51-month sentence for the i llegal r eentry conviction in Case No. 12-40987. H e argues that the district c ourt plainly e rred 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 a rgues that his prior Texas burglary of a dwelling with intent to commit theft w a s not a c rime of violence because Texas law too broadly defines the “owner” of a habitation as a person w ith 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).

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. 2 Case: 12-40987 Document: 00512223661 Page: 2 Date Filed: 04/29/2013No. 12-40987 c/w No. 12-41020

We recently r e

j e c t e d th e s a m e ar gu m ent i n United States v. Morales–Mota , 704 F.3d 410, 412 ( 5th Cir. 2013) (affirming a 16–level sentencing enhancement under § 2L1.2(b)(1)(A)(ii) b ased on a Texas conviction f o r b urglary of a habitation under § 30.02(a)). Accordingly, the distr i c t c o urt’s application of the 12-level enhancement was not error, p lain or otherwise. T he judgment i n Case No. 12- 40987 is AFFIRMED. Munoz a lso appeals the revocation sentences i m p o sed in Case No. 12- 41020, arguing that, in light o f the d istrict co u rt’s e rror i n applying the 12-level enhancement, the revocation sentences are plainly u n r e asonable. Because Munoz did not object t o the reasonableness of his revocati o n s e n t ences in the district court, our review is for plain error. See United States v. Whitelaw , 580 F

. 3 d 256, 259-60 (5th Cir. 2009). Revocation sentences that are w ithi n t h e sentencing range determined under the applicable Sentencing Guidelines policy

s t atements are presumptively reasonable. United S t a t es v . Lo p ez - V e las q u ez , 5 2 6 F.3d 804, 809 (5th Cir. 2008). To the extent h is a rgument is premised on a f inding that the d istrict co u rt erred in fi n d i n g that Munoz’s p rior conviction was a crime of vi olence, this argument necessarily f ails. E ven assuming arguendo t h a t a 16-level crime of violence enhancement was improperly applied t o h is 2006 sentence, Munoz does not cite any authority for his assertion that this is a factor that the d istrict co u rt

s hould have considered in determining h is revocation sentence. Ind e e d , M u n o z ’ s
ar g ument is not supported by the relevant statutes or the Sentencing Guide l i n e s. 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 u se his appeal of h is revocation sentences to challenge the underlying sentence. See United States v. W illis , 563 F .3d 168, 170 (5th Cir. 2009). Munoz has not shown that the d istrict co u rt plainly erred in determining the revocation sentences, see Whitelaw , 58 0 F

. 3d at 259-60, and he has not rebutted the presumption that his revocation sen t e n c e s a re substantively
3 Case: 12-40987 Document: 00512223661 Page: 3 Date Filed: 04/29/2013No. 12-40987 c/w No. 12-41020

reasonable, see Lopez-Velasquez , 526 F.3d at 8 09. Accordingly, th e judgment in Case No. 12-41020 is AFFIRMED.

4 Case: 12-40987 Document: 00512223661 Page: 4 Date Filed: 04/29/2013