* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41277

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

OSVALDO MENDEZ-GARCIA, also known as Eric Rolondo Alarcon-Muniz

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:06-CR-346-ALL

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Osvaldo Mendez-Garcia (Mendez) appeals the 92-

month sentence imposed following his guilty plea to illegal entry into the United

States following deportation. Mendez argues that the district court plainly erred

in enhancing his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on

his prior conviction for a crime of violence, the burglary of a habitation. He

argues that the statute under which he was convicted, Tex. Penal Code Ann. §

30.02(a) includes a means to committhe offense that does not meetthe definition

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-41277

2

of a generic burglary as required by the Guidelines to impose such an

enhancement. Mendez also asserts that, although the indictment charged him

conjunctively under two sections ofthe statute, one section of which satisfied the

definition of generic burglary, his guilty plea did not establish that he committed

the conduct under that section.

Mendez was charged conjunctively in the indictment under TEXAS PENAL

CODE ANN. § 30.02(a)(1) and § 30.02(a)(3), which provide different means of

committing burglary of a habitation. The latter section does not require an

intent to commit a crime at the time of the unlawful entry. § 30.02(a)(3). See

United States v. Herrera-Montes, 490 F.3d 390, 391-92 (5th Cir. 2007). The

record in this case contains no evidence reflecting the specific subsection to

which Mendez pleaded guilty, nor does it contain the factual basis for his plea.

Thus, we cannot determine whether Mendez pleaded guilty to an offense that

meets the definition of a generic burglary. Id. Accordingly, we hold that the

district court erred in imposing the 16-level sentencing enhancement.

Despite this error, reversal is not required. In United States v. Bonilla,

524F.3d 647, 655-57 (5th Cir. 2008),this court determined thatthe district court

erred in applying the Guidelines, but it determined that “[n]ot all errors in

determining a defendant’s guideline sentence require reversal.” The court

affirmed the sentence, finding that “because the district court imposed an

alternative non-guidelines sentence, the advisory sentence did not result from

the guidelines error and we need not vacate the sentence on that basis.” 524

F.3d at 659.

In the instant case, the district court made it clear that it would have

imposed the same sentence even if § 2L1.2 were inapplicable. The district

court’s comments reflect that, like the district court in Bonilla, it imposed an

alternative non-guidelines sentence. Moreover, the reasons given by the district

courtfor the non-guidelines sentence imposed were adequate. See United States

v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
No. 07-41277

3

AFFIRMED.