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

No. 11-50526 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. H E CTOR CERVANTES-AGUILAR, also known as Hector Aguilar Cervantes, also known as Hector Maurilio Cervantes Aguilar, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-3081-1

Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Hector Cervantes-Aguilar appeals his conviction for illegal reentry after deportation and the resulting within-guidelines sentence of 77 months and one day. Cervantes-Aguilar contends that the district court erred in its determination that his Texas conviction of burglary of a habitation was a crime of violence warranting a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). He further a r gu e s that his sentence is substantively 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 Februa ry 23 , 20 12 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: 11-50526 Document: 00511765413 Page: 1 Date Filed: 02/23/2012No. 11-50526

unreasonable and unconstitutionally disproportionate to the offense. Finally, Cervantes asserts that he was denied the effective assistance of counsel because counsel advised him to plead guilty pursuant to a plea agreement and failed to request a departure from the guidelines range. The district court’s characterization of a prior offense as a crime of violence is reviewed de novo. United States v. Garcia-Mendez , 420 F.3d 454, 456 (5th Cir. 2005). Cervantes-Aguilar’s Texas state court indictment conjunctively charged elements of both burglary offenses under T E XA S P E NAL C O D E AN N
. § 30.02(a)(1) and (a)(3). We have determined that a convict i o n u n d e r § 30.02(a)(1) is equivalent to the enumerated offense “burglary of a dwelling,” and is therefore

a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Garcia-Mendez , 420 F.3d at 456-57. However, a conviction under § 30.02(a)(3) is not the equivalent of the enumerated offense of burglary of a dw e lling because § 30.02(a)(3) does not require entry with an intent to commit a crime. Unite d States v. HerreraMontes , 490 F.3d 390, 392 ( 5 t h C i r . 2007); see also United States v. BeltranRamirez , 266 F. App’x 371, 372 (5th Cir. 200 8). In determining whether Cervantes-Aguilar’s prior conviction qualified as
a crime of violence, the district c o u rt properly considered Cervantes-Aguilar’s written judicial confession. See United States v. Garcia-Arellano , 522 F.3d 477, 4 8 1 (5th Cir. 2008). In his confession, Cervantes-Aguilar stipulated th a t h e committed all of the allegations in the indictment, which included the elements of both burglary offenses. This language cleared up any ambiguity r e g arding Cervantes-Aguilar’s guilty plea to the conjunctive charges in the indictment and

was sufficient to establish a c onviction under § 30.02(a)(1). See id. Therefore, the district court did not err in applying the 1 6 -level enhancement under § 2L1.2(b)(1)(A)(ii). See id. Because Cervantes-Aguilar did not object to the reasonableness o f his

s entence after it was imposed, review is for plain error. See United States v . Peltier , 505 F.3d 389, 391-92 (5th Cir. 2007). Cervantes-Aguilar’s w i th i n2 Case: 11-50526 Document: 00511765413 Page: 2 Date Filed: 02/23/2012No. 11-50526

guideli n e s s entence is presumptively reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Despite t h e di s trict court’s concern over the fairness of the 16-level enhancement, the court believed the enhancement was “the correct result.” The district court heard Cervantes-Aguilar’s arguments in mitigation but thereafter noted that Cervantes-Aguilar had “a rather extensive criminal history.” There is no indication that the district court believed Cervantes-Aguilar’s criminal history overstated the seriousness of the offense. C e rvantes-Aguilar has not shown that the district court failed to give proper weight to his arguments or any particular sentencing factor under 18 U.S.C. § 3553(a). Thus, he fails to rebut t h e presumption of reasonableness that is accorded his within-guidelines sentence. See Cooks , 589 F.3d at 186. Additionally, we conclude that CervantesAguil ar h as not demonstrated that his sentence is grossly disproportionate to his offense or that it rises to the level of cruel and unusual punishment. See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1 993)

. Cervantes-Aguilar did not raise his claims of ineffective assistance in the district court, and the district court did not hear any evidence related to them. The record is not sufficiently developed for us to consi d e r the claims, and they

are denied with o u t p rejudice to Cervantes-Aguilar’s right to raise them in a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. See United States v. Cantwell , 470 F.3d 1087, 1091 (5th Cir. 2 006). Accordingly, the judgment of the district court is AFFIRMED.

3 Case: 11-50526 Document: 00511765413 Page: 3 Date Filed: 02/23/2012