     Case: 11-20811       Document: 00512164349         Page: 1     Date Filed: 03/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 5, 2013
                                     No. 11-20811
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ARNOLD AVILA AVELLANEDA, also known as Arnold Avila, also known as
Arnold Avila-Avellaneda,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-409-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Arnold Avila Avellaneda appeals the sentence imposed following his guilty
plea conviction for illegal reentry into the United States by a previously deported
alien after an aggravated felony conviction. He argues that the district court
plainly erred in imposing a 16-level crime of violence enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his Texas conviction for burglary of a
habitation with intent to commit theft. He contends that because his conviction


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-20811    Document: 00512164349     Page: 2    Date Filed: 03/05/2013

                                 No. 11-20811

falls under Texas’s unique “greater right to possession” theory, it does not
constitute a generic burglary conviction under Taylor v. United States, 495 U.S.
575 (1990), and, therefore, it was not a conviction for burglary of a dwelling
under § 2L1.2. Because Avila Avellaneda did not raise this objection in the
district court, review is limited to plain error.         See United States v.
Chavez-Hernandez, 671 F.3d 494, 497-99 (5th Cir. 2012); see also Puckett v.
United States, 556 U.S. 129, 135 (2009).
      We recently rejected this argument in United States v. Morales-Mota, ___
F.3d ___, 2013 WL 104935 (5th Cir. Jan. 9, 2013) (No. 12-40491). Accordingly,
pursuant to Morales-Mota, the district court’s application of the 16-level
enhancement in this case was proper. See id.
      AFFIRMED.




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