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

No. 12-41320 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. EDEN PEREZ, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-1521-1

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Eden Perez appeals the 92-month, withi n - gu i delines sentence imposed following his guilty plea conviction for being a felon in p o ssession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 9 24(a)(2). The presentence report, which

was a dopted by the district court, calculated Perez’s base offense level pursuant to U.S.S.G. § 2K2.1(a)(4)(A) because he h ad a prior Texas conviction for burglary of a h abitation, which c onstituted an enumerated “cri m e of violence,” namely burglary of a dwelling, u nder U.S.S.G. § 4 B1.2(a)(2). Perez argues that his base 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 June 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

. R. 47. 5. 4. Case: 12-41320 Document: 00512276023 Page: 1 Date Filed: 06/17/2013No. 12-41320

offense level was improperly calculated b ecause Texas law defines the owner of

a habitation as a person with merely a greater right to possession than the criminal actor and that this places the Texas c rime outside the generic d e finition of burglary of a dwelling. In United St a tes v. Morales-Mota , 704 F.3d 4 10, 412 ( 5th Cir.), cert. denied , 2013 WL 1 473651 (May 13, 2013), w e rejecte d t his argument on plain error review, affirming a sentencing enhancement for a “c rime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a T e x a s conviction for burglary of a habitation under Texas Penal Code § 30.02(a)(1). We noted that we h ad recently rejected on d e no v o review a materially indistinguishable argument in United States v. Joslin , 4 87 F. App’x 139, 141-43 (5th Cir. 2012), cert. denied, 2 013 WL 991511 (Apr. 1 5, 2013), holding that, under the Armed Career Criminal Act, a conviction for Texas b u rglary of a habitation under § 30.02(a)(1) constitutes generi c b urglary, notwithstanding the “greater right to p o ssession” theory. Morales-Mota , 704 F.3d at 412. While Perez concedes that his argument should be reviewed for plain error and that it is f

o reclosed by our precedent in Morales-Mota , h e wishes to preserve his argument that Joslin was wrongly decided for S u p r e me Court review. Because one panel of this court may not overrule the decision of another absent

an en b anc or sup e r s e d i n g Supreme Court decision, s ee United States v. Lipscomb , 299 F.3 d 303, 3 13 n.34 (5th Cir. 2002), Perez’s argument that the “greater right to p ossession” definition makes Texas burglary broader than generic burglary is foreclosed by Morales-Mota

. Perez’s m otion for summary disposition is GRANTED. The district court’s judgment is AFFIRMED.

2 Case: 12-41320 Document: 00512276023 Page: 2 Date Filed: 06/17/2013