     Case: 15-40724      Document: 00513369423         Page: 1    Date Filed: 02/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-40724                                   FILED
                                  Summary Calendar                          February 4, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODOLFO CARRANSA-VELASQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:14-CR-780


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Rodolfo Carransa-Velasquez (Carransa) appeals the 24-month sentence
imposed following his guilty plea conviction for illegal reentry. He contends
that the district court plainly 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 two 1999 Texas felony convictions for theft were aggravated felonies under
8 U.S.C. § 1101(a)(43)(G).        Carransa argues that the Texas theft statute


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-40724

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, Carransa 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. He further maintains the district
court’s error affected his substantial rights because it resulted in a
significantly longer term of imprisonment than he would have received under
the correct guidelines range. In the alternative, Carransa requests an en banc
hearing to reconsider the Rodriguez-Salazar holding.
       Carransa did not object to the district court’s imposition of the eight-level
aggravated felony enhancement. Accordingly, as he concedes, our review is for
plain error. See Puckett v. United States, 556 U.S. 129, 134-35 (2009). To
establish plain error, Carransa must show a forfeited error that is clear or
obvious and that affects his substantial rights. See id. at 135. If he makes
such a showing, we have the discretion to correct the error only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
       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



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                                 No. 15-40724

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, Carransa has failed to show that we violated
the rule of orderliness by not adhering to our previous holding in Martinez. See
id. Accordingly, Carransa has not shown plain error. See Puckett, 556 U.S. at
134-35.
      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
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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