IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40108

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE PRADO-MENDOZA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:15-CR-546-1

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Jose Prado-Mendoza pleaded guilty to a single-count indictment 

charging him with illegal reentry by a previously deported alien in violation of 

8 U.S.C. § 1326(a) and (b). The district court applied the 16-level “crime of 

violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014) based on 

Prado-Mendoza’s prior conviction for burglary of a habitation in violation of 

Texas Penal Code § 30.02(a). For the first time on appeal, Prado-Mendoza 

 

* 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

May 26, 2017

Lyle W. Cayce

Clerk

 Case: 16-40108 Document: 00514008950 Page: 1 Date Filed: 05/26/2017
No. 16-40108

2

argues that in light of Mathis v. United States, 136 S. Ct. 2243 (2016), the 

district court plainly erred by treating his Texas conviction for burglary of a 

habitation as a crime of violence for purposes of the § 2L1.2(b)(1)(A)(ii) 

enhancement. The Government argues that Prado-Mendoza waived this issue 

because counsel agreed that Prado-Mendoza’s prior offense warranted the 16-

level enhancement, and that, as a waived error, Prado-Mendoza’s argument is 

entirely unreviewable. We pretermit the issue whether Prado-Mendoza has 

waived the argument he raises, as his argument fails under the less stringent 

plain error standard of review. See United States v. Rodriguez, 523 F.3d 519, 

525 (5th Cir. 2008).

To establish plain error, Prado-Mendoza must demonstrate a forfeited 

error that is clear or obvious and that affects his substantial rights. See Puckett 

v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this 

court has the discretion to correct the error if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. See id.

In United States v. Conde-Castaneda, 753 F.3d 172, 176-77 (5th Cir. 

2014), we held that § 30.02(a) is a divisible statute and that a conviction under 

§ 30.02(a)(1) qualifies as a generic burglary. We recently revisited this holding 

in light of Mathis and decided that § 30.02(a) is “elements-based” and divisible, 

and the modified categorical approach applies. United States v. Uribe, 838 F.3d 

667, 670-71 (5th Cir. 2016), cert. denied, 2017 WL 661924 (Mar. 20, 2017) (No. 

16-7969). Prado-Mendoza’s state court documents clearly show that he was 

convicted under subsection (a)(1) of the Texas burglary statute. Accordingly, 

the district court properly applied the 16-level “crime of violence” enhancement 

under § 2L1.2(b)(1)(A)(ii), and Prado-Mendoza fails to show error, plain or 

otherwise. 

AFFIRMED.

 Case: 16-40108 Document: 00514008950 Page: 2 Date Filed: 05/26/2017