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

No. 12-40491 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus FRANCISCO MORALES-MOTA, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: Francisco Morales-Mota pleaded guilty , with o ut th e b e n e f it o f a p l e a a greement, of bei n g unlawfully present in the United States after having been deported. His offense level was enhanced by sixteen under U.S.S.G. § 2L1.2(b)- (1)(A)(ii) based on a conviction of burglary of a habitation with intent to commit theft, which was determined to be a crime of viol e n c e (“COV”). Morales-Mota ultimately received a forty-six-month sentence, which was at the bottom of the 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 ary9, 201 3 Lyle W . Cayce Clerk Case: 12-40491 Document: 00512107204 Page: 1 Date Filed: 01/09/2013No. 12-40491

advisory guideline range. Morales-Mota challenges the enhancement, contending that Texas’s burglary-of-a-habitation offense falls outside the generic, contemporary definition of burglary and thus does not constitute a COV. Because Morales-Mota did not raise that objection in t h e district court, our review is for plain error. See United States v. Chavez-Hernandez , 671 F.3d 494, 497-99 (5th Cir. 2012). To succeed under that standard, Morales-Mota must show an error that is clear or obvious and that affects his substantial rights, but even so, we gene r ally will exercise our discretion to correct the error only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v . U n i ted States , 556 U.S. 129, 135 (2009) (internal quotation marks and citation omitted). Section 2L1.2(b)(1)(A)(ii) provides for an increase of sixteen to a base offense level if the defendant was previously deported after being convicted of a COV. Among the enumerated COVs listed in the guideline commentary is burglary of a dwelling. § 2L1.2, comment. (n.1(B)(iii)). To determine whether a particular conviction is for an enumerated COV, we compare the generic, contemporary definition of the enumerated crime with the conduct described in the statute of conviction. United States v. Lopez-DeLeon , 513 F.3d 472, 474 (5th Cir. 2008). If the statute’s definition of an offense is broader than the generic definition, that offense cannot serve as a predicate for the adjustment. United States v. Sanchez , 667 F.3d 555, 561 (5th Cir. 201 2). The generic, contemporary definition of burglary of a dwelling is the unlawful or unprivileged entry into, or remaining in, a building, structure, tent,

or vessel used for human habitation, with intent to commit a crime. The statute 1 of conviction

SST E X
. P E NA L C O D E § 30.02(a)(1)

SS makes it a crime to enter into a habit a t i on or building not open to the public, without consent of the owner,

See Uni ted States v. Casti llo-M ora le s , 507 F.3d 873, 875 (5t h Cir. 2007) ; Uni ted States 1
v. O rtega -G onzaga , 490 F.3d393 , 394- 95 ( 5th Cir. 200 7). 2 Case: 12-40491 Document: 00512107204 Page: 2 Date Filed: 01/09/2013No. 12-40491

intending to commit a felony, theft, or assault. Morales-Mota’s argument hinges

on the definition of “owner,” which under Texas law includes a person who has “a greater right to possession of the property than the actor.” T E X
. P E NA L C O D E § 1.07(35)(A). According to Morales-Mota, 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 generic definition of burglary of a dwelling. In United States v. Garcia-Mendez , 420 F.3d 454, 456-57 (5th Cir. 2005),

we held that burglary of a habitation under § 30.02(a)(1) constitutes burglary of

a dwelling and supports an enhancement under § 2L1.2, but we did not address Morales-Mota’s contention. Recently we rejected a materially indistinguishable argument in United States v. Joslin , No. 11-40863, 2012 WL 3488717, at *3-*4 (5th Cir. Aug. 14, 2012) (per curiam) (unpublished), deciding that Texas’s definition of “owner” did not bring its burglary-of-a-habitation statute outside the generic definition of burglary f o r p u rposes of the Armed Career Criminal Act (“ACCA”). Id

. In Joslin , we relied on the Supreme Court’s observation that Congre s s listed burglary as an enumerated offense in the ACCA because of its “‘inherent potential for harm to persons.’” Id. at *3 (quoting Taylor v. United States, 495 U.S. 575, 588 (1990)). “Merely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may res ult when a person enters a habitation with intent to commit theft.” Id. at *4. Though Joslin is unpublished and t h u s n o t precedential, it is instructive, its reasoning persuasive. See 5 T H C I R
. R. 47.5.4; Ballard v. Burton , 444 F.3d 391, 401 & n.7 (5th Cir. 2006). Accordingly, the enhancement in this case was proper. 2 The judgment of sentence is AFFIRMED.

See Uni ted States v. Na jer a- Me ndoza , 683 F.3d 627, 631 & n.3 (5t h Cir. 2012) (em plo y- 2 ing the sam e analys is to dete rm ine w heth er an off ens e is a violent fel ony forpurp os es of the ACCA andw heth er an o ff ens e i s a CO V f

or pur pos es of

t he se nten cing guide lines ). 3 Case: 12-40491 Document: 00512107204 Page: 3 Date Filed: 01/09/2013