### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-20237 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. EDGAR SANTANA CARDENA GONZALES, also known as Cornelio Martinez Espinoza, a l s o k nown as Edgar Santana Gonzalez Cardenas, also known as Edgar Santana Cardenas-Gonzalez, also known as Edgar Santana CardenasGonzales, also known as Edgar Santana Cardenas, also known as Reynaldo Garza-Medina, a lso known as Eladio Vasquez, also known as Edgar Cardenas Gonzalez, also known as Reynaldo Garza Medina, also known as Edgar Go n z alez Cardenas, also known as Edgar Cardenas G o n z a l e s, also known as Cornelio Espinoza Martinez, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:11-CR-818-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Edgar Santana Cardenas Gonzales pleaded guilty, without the benefit of

a plea agreement, to illegal r e e n t ry by a previously deported alien after an U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary17 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-20237 Document: 00512116609 Page: 1 Date Filed: 01/17/2013No. 12-20237

aggravated felony. The prob a t i o n officer calculated a total offense level of 22, which inclu de d a 1 2

- level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based

on Cardenas Gonzales’s prior Texas conviction fo r b urglary of a habitation. Cardenas Gonzales objected to the 12-le v e l e nhancement on the grounds that Texas’s burglary of a habitation offense does not meet the generic definition of burglary of a dwelling because a person may be convicted of burglary in Texas if he enters onto property w i th o u t the consent of another person who has a greater right to possession of the property. At sentencing, the di s tri c t c ourt overruled the objection. On appeal, Cardenas Go n z a les challenges his sentence. We review sentences for reasonableness. Gall v. United States , 552 U.S. 38, 51 (2007). We first determine whether the district court committed any significant procedural

error. Id. If we find procedural error, we will remand unless the proponent of the sentence shows the error is harmless, i.e., that it did n ot affect the district

cou rt ’ s selection of the sentence. United States v. Delgado-Martinez , 564 F.3d 750, 753 (5th Cir. 2009). Cardenas Gonzales argues that Texas’s burglary of a habitation offense does not meet the generic definition of burglary of a dwelling and thus does not constitute a crime of violence. If the statute’s definition of an offense is broader than the generic definition, then that offense cannot serve as a predicate for the adjustment. United States v. Sanchez , 667 F.3d 555, 561 (5th Cir. 2012). This court has held that burglary of a habitation under § 30.02(a)(1) of the T exas Penal Code, the statut e Cardenas Gonzales was convicted under, constitutes burglary of a dwelling and supports an enhancement under § 2L1.2. United States v. Garcia-Mendez , 420 F.3d 454, 456-57 (5th Cir. 2005). According to Cardena s Gon z al es, because a person can be convicted of burglary of a habitation

even if he has a legitimate right to possess the property, the Texas statute is broader than the ge n e ri c definition of burglary of a dwelling. We recently rejected a materially indistinguishable argument in United States v. Joslin , No.
2 Case: 12-20237 Document: 00512116609 Page: 2 Date Filed: 01/17/2013No. 12-20237

11-40863, 2012 WL 3488717, *4 (5th Cir. Aug. 14, 2012), reasoning that “[m]erely maintaining an inf e ri o r possessory interest in a habitation does not extinguish the potential violence th a t m ay r e sult when a person enters a habitation with the intent to commit theft.” Id. Although Joslin is unpublished,

we find it persuasive. See United States v. Pino Gonzalez , 636 F.3d 157, 160 (5th Cir.), cert. denied , 132 S. Ct. 178 (2011). AFFIRMED.

3 Case: 12-20237 Document: 00512116609 Page: 3 Date Filed: 01/17/2013