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

No. 12-41117 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ROLANDO VILLARREAL, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-1377-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Rolando Villarreal pled guilty to one count of b eing a felon in possession of a firearm in violation of 1 8 U

. S .C. §§ 922(g)(1) and 924(a)(2). Because Villarreal had three prior v i olent felony convictions, his sentence was enhanced pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). He

was sentenced to 1 88 m o n t h s ’ i m p r isonment and two years o f supervised release. V i l larreal argues the district court e rred by imposing t he enhanced penalties under the ACCA based on his p rior Texas burglary conviction. He 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 April 17, 2013 Ly l e W . Cay ce 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

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argues that Texas law defines the owner of a habitation as a person with merely

a greater r ight to possessio n t h a n t h e c riminal actor and that t his places the Texas c rime outside the generic definition of burglary of a dwelling. This court recently rejected an indistinguishable argument in U n ited States v. Joslin , 487 F. App’x 139, 142-43 (5th Cir. 2012). We find Joslin instructive and persuasive. Se e U n i t e d States v. Morales-Mota , 704 F.3d 410, 411-12 (5th Cir. 2013) (applying plain-error review). T he district court did n ot err i n a p p l y ing the ACCA in this case. In a n a r g u m e nt he concedes is foreclosed, Villarreal argues the enhanceme n t under the ACCA could not a pply t o him because the factual predicate, his three prior violent felonies, were not c harge d i n the indictment, not admitted, and not proved to a jury. T he ACCA “does n ot create a separate offense bu t i s merely a sentence enhancement provision.” United States v. White , 465 F.3d 250, 254 (5th Cir. 2006) (quoting United States v . S t o n e , 3 06 F.3d 2 41, 243 (5th C ir. 200 2 ) ) (brackets and q uotation marks omitted). Consequently, “‘neither the statute nor the Constitution r equires a jury finding

on t h e existence of t he three felony convictions required f or the enhancement.’” Id . (quoting Stone , 306 F.3d at 243). Villarreal argues that S ection 922(g) does n ot require a substantial effect

o n interstate commerce and is, therefore, unconstitutional on i ts face a n d a s applied. As he concedes, his argument is foreclosed by this co u rt’s p r ecedent. See United States v. Daugherty , 264 F.3d 513, 518 (5th Cir. 2001). Finally, Villarreal asserts t hat the district court plai n l y erred by i m permissibly delegating the authority to order him to participate in ment a l health, drug treatment, and anger management p rograms as deemed necessary by his p r o b a t ion o fficer. He concedes that his argument is foreclosed. See United States v . Bishop , 603 F.3d 279, 282 (5th C i r . 2010); U nited States v. Rodriguez , 558 F.3d 408, 414-17 (5th Cir. 2009).

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The district court’s j udgment is AFFIRMED. The G overnment’s motion for s ummary a ffirmance and its alternative motion for an extension of time to file a brief are DENIED.

3 Case: 12-41117 Document: 00512211202 Page: 3 Date Filed: 04/17/2013