### 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

- Me ndoza pleaded guilty to a single

- count indictment charging him with illegal reentry by a previously deported alien in v iolation of 8 U.S.C. § 1326(a) and (b). T he district court applied the 16

- level “crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2 01 4 ) 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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: 05/26/2017No. 16

- 40108

2 argues that in light of Mathis v. United States , 136 S. Ct. 2243 (2016), the district cour t 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 strin gent 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 Puck ett 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 reputa tion of judicial proceedings

. See i d. 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 Mathi s and decided that § 30.02 (a) is “elements

- based” and divisible, and the modified categorical approach applies. United States v. Uribe , 83 8 F.3d 667, 670

- 71 (5th Cir. 2016), cert. denied , 2017 WL 661924 (Mar. 20, 2017) (No. 16

- 7969). Prado

- Mendoza ’s s tate court documents clearly show that he was convicted under subsection (a)(1) of the Texas burglary statute. Accordingly, the district court properly applied the 1 6

- level “crime of violence” enhance ment under § 2L1.2(b)(1)(A)(ii), and Prado

- Mendoza fails to show error , plain or oth erwise. AFFIRMED. Case: 16-40108 Document: 00514008950 Page: 2 Date Filed: 05/26/2017