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

No. 12-40666 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. FABIAN ORTA LOPEZ, also known as Fabian Orta-Lopez, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-1317-1

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Fabian Orta Lopez pleaded guilty , without benefit of an agreement, to being illegally pr e s e n t i n the United States following removal. Over his objection, the district court applied a 16-level s e nt e ncing enhancement pursuant to Guideline § 2L1.2(b)(1)(A)(ii) because O r t a L o pez had been previously removed foll owing a conviction of a felony constituting a crime o f violence. Following a two-level adjustment for acceptance of respon s ib ility, Orta Lopez’ total offense level was 22; combined with his criminal-history category o f III, his 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 17, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

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

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advisory Guidelines sentencing range was 51 to 6 3 months’ imprisonment. The court varied downward and sentenced Orta L o p e z , inter a l ia , to 40 months’ imprisonment. First, Orta Lopez c ontends: his felony convi c t i o n f or burglary of a habitation falls u nder Texas’ “greater right to possession” theory; therefore, it doe s n o t c o n stitute a conviction for generic burglary under Taylor v. United States , 495 U.S. 575 (1990); and, accordingly, it is not a conviction f or burglary of a dwelling under Guideline § 2L1.2 and not a crime of violence. Orta Lopez’ claim is foreclosed by United States v. Morales-Mota , 704 F .3d 410, 412 (5th Cir. 2013), which rejected an identical argument and affirmed a 16-level sentencing enhancement under Guideline § 2L1.2(b)(1)(A)(ii) based on a Te x a s conviction for burglary o f a habitation under Texas Penal Code § 30.02(a)(1). Morales-Mota

was d ecided after the Government filed its brief. In his reply brief, Orta Lopez concedes this issue is foreclosed, but continues t o raise it in order to preserve it for possible further review. S e c o n d, Orta Lopez c ontends the court erred in failing to award him a third point for a c c e p t a nce of responsibility. He asserts the G overnment improperly denied the a dditional level based on his refusal to plead guilty pursuant t o a n agreement wherein h e waived his appel l ate rights. As Orta Lopez concedes, his contention i s foreclosed by United Sta t e s v . N e wsom , 515 F.3d 3 74, 378-79 ( 5th Cir. 2008); h e r aises the issue only to p reserve it for possible further review. (Newsom held a di strict court cannot award a reduction under Guideline § 3E1.1 unless a motion is filed by the Government; the G overnment, however, can decline to move for an additional acceptance po i n t based on defendant’s refusal to waive his appellate rights. See id. ) Third, O rta Lopez c ontends the c o u r t plainly erred in convicting, sentencing, and entering judgment against him under 8 U.S.C. § 1326(b)(2), because he was not dep o r t ed following an “aggravated f elony” conviction, as defined in 8 U.S.C. § 1101(a)(43). He u r g e s t h e sentence be vacated and
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remanded for r esentencing o r, in the alternative, the judgment be reformed. The Government agrees the judgment erroneously reflects a conviction under § 1326(b)(2), b ut it contends the j udgment should be reformed to ref l e c t a conviction under § 1326(b)(1) (removal subsequent t o other-than-aggravated felony conviction). Having failed to raise the issue in district court, Orta Lopez acknowledges review is only for plain error. E.g. , United States v. Mondragon-Santiago , 564 F.3d 357, 368 (5th Cir. 2009). Orta Lopez must therefore show, inter alia , a clear

or obvious error that aff e ct ed his substantial rights. U nited States v. Puckett , 556 U.S. 129, 135 (2009). Orta Lopez’ Texas conviction of burglary o f a h ab i tation does n ot qualify as an “a g gravated felony” for purposes of § 1101(a)(43)(F) because he was sent e n c e d t o deferred-adjudication probation. E.g. , id. at 369. Orta Lopez concedes, however, he c a n n o t s h ow that the e rror affected his substantial rights becaus e his sentence, which was b elow the advisory Guidelines range, did n ot ex c eed the statutory maximum under § 1326(b)(1). E.g. , id. AFFIRMED. The judgment i s REFORMED to reflect c onvicti o n and sentencing under 8 U.S.C. § 1326(b)(1).

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