     Case: 15-20334      Document: 00513403429         Page: 1    Date Filed: 03/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20334
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 2, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GARRY EDGAR DEL ANGEL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-632-1



Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Garry Edgar Del Angel (Del Angel) appeals the 23-month sentence
imposed following his guilty plea conviction for illegal reentry. He contends
that the district court erred by imposing the eight-level aggravated felony
enhancement under U.S.S.G. § 2L1.2(b)(1)(C) based on a finding that his 2011
Texas felony convictions for theft were aggravated felonies under 8 U.S.C.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20334   Document: 00513403429    Page: 2   Date Filed: 03/02/2016


                                 No. 15-20334


§ 1101(a)(43)(G). Del Angel argues that the Texas theft statute encompasses
conduct broader than the generic, contemporary definition of theft because it
includes theft by deception, which can be committed by the appropriation of
property with the owner’s consent, and we have defined generic theft as the
taking of property without the owner’s consent. He concedes that this issue is
foreclosed by United States v. Rodriguez-Salazar, 768 F.3d 437, 438 (5th Cir.
2014), in which we held that the Texas theft statute, Texas Penal Code § 31.03,
does not deviate from the generic crime of theft. However, Del Angel contends
that Rodriguez-Salazar conflicts with our earlier decision in Martinez v.
Mukasey, 519 F.3d 532, 540-41 (5th Cir. 2008), in which we held that the
federal bank fraud statute does not meet the generic definition of theft. He
asserts that, under the rule of orderliness, Martinez is the governing rule of
decision for this issue. Del Angel further maintains the district court’s error
was not harmless because the adjusted advisory guidelines range would have
been anywhere from two to eight months less than the sentence imposed by
the district court.
       In Rodriguez-Salazar, we specifically addressed any possible conflicts
with our earlier decision in Martinez. Rodriguez-Salazar, 768 F.3d at 438. We
reiterated our holding in Martinez and emphasized that the question of a theft
crime was not before this court in that case and, therefore, Martinez was not
controlling precedent. Id. In light of this distinction and our analysis of
consent in Rodriguez-Salazar, Del Angel has failed to show that we violated
the rule of orderliness by not adhering to our previous holding in Martinez. See
id.
       The Government has moved for summary affirmance.               Summary
affirmance is not appropriate, and the Government’s motion is DENIED. See
United States v. Holy Land Found. for Relief and Dev., 445 F.3d 771, 781 (5th



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                               No. 15-20334


Cir. 2006). The Government’s alternative motion for an extension of time to
file a reply brief is also DENIED.   The judgment of the district court is
AFFIRMED.




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