     Case: 16-40666      Document: 00513893417         Page: 1    Date Filed: 03/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-40666                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   March 1, 2017
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

RAFAEL MONDRAGON,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1405-1


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Rafael Mondragon, convicted of violating 8 U.S.C. § 1326(a)
and (b)(2) following a guilty plea, challenges his 58-month prison sentence. We
AFFIRM.
       Under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), a
defendant who is convicted of illegal reentry receives a sixteen-level
enhancement to his base offense level if he was previously deported after being


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40666        Document: 00513893417        Page: 2   Date Filed: 03/01/2017



                                      No. 16-40666
convicted of a felony that is a crime of violence. Relevant to this case, the
commentary to this section provides that “crime of violence” includes burglary
of a dwelling.      U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Mondragon’s presentence
report (“PSR”) assessed a sixteen-level enhancement to his offense level under
U.S.S.G. § 2L1.2(b)(1) because of his prior burglary conviction under Texas
Penal Code § 30.02(a). 1 The resulting Guidelines range was fifty-seven to
seventy-one months. The district court overruled Mondragon’s objection to the
enhancement and sentenced Mondragon to fifty-eight months of imprisonment
and two years of supervised release.
      On appeal, Mondragon maintains that the sentencing enhancement was
assessed in error because (1) Texas burglary is broader than generic burglary
and (2) the court cannot use the modified categorical approach because the
statute is not divisible. These arguments fail. We have previously held that
Texas Penal Code § 30.02(a) is divisible and recently reaffirmed this holding
in the wake of Mathis v. United States, 136 S. Ct. 2243 (2016). See United
States v. Uribe, 838 F.3d 667, 669–71 (5th Cir.) (citing, inter alia, United States
v. Conde-Castaneda, 753 F.3d 172, 175–79 (5th Cir. 2014)), reh’g denied (5th
Cir. 2016). Accordingly, Mondragon, who was convicted under Texas Penal
Code § 30.02(a)(1), qualified for the sentencing enhancement. See Conde-
Castaneda, 753 F.3d at 175–79.
      Additionally, even if there was an error, it was harmless. See FED. R.
CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”). At the sentencing hearing, counsel
for the defendant stated that, without the enhancement, the Guidelines range
would have been fifteen to twenty-one months. The government stated that,
should that lower range apply, it would have sought an above-Guidelines range


      1   The PSR used the 2015 version of the Guidelines.
                                             2
    Case: 16-40666    Document: 00513893417     Page: 3   Date Filed: 03/01/2017



                                 No. 16-40666
based in part on the under-representation of Mondragon’s criminal history. In
pronouncing the fifty-eight month sentencing, the district judge stated that she
was aware of both ranges and “d[idn]’t know if [she] can make [her]self any
clearer that [her] sentence would be the same having considered everything
before [her] and both applicable ranges.” Accordingly, any error was harmless.
See United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (“We have
held that a guidelines calculation error is harmless where the district court has
considered the correct guidelines range and has stated that it would impose
the same sentence even if that range applied.”).
      AFFIRMED. The motion for summary affirmance is denied as moot.




                                       3
