     Case: 12-40666       Document: 00512211867         Page: 1     Date Filed: 04/17/2013




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

                                                                            FILED
                                                                           April 17, 2013
                                     No. 12-40666
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FABIAN ORTA LOPEZ, also known as Fabian Orta-Lopez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:11-CR-1317-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Fabian Orta Lopez pleaded guilty, without benefit of an agreement, to
being illegally present in the United States following removal.                    Over his
objection, the district court applied a 16-level sentencing enhancement pursuant
to Guideline § 2L1.2(b)(1)(A)(ii) because Orta Lopez had been previously
removed following a conviction of a felony constituting a crime of violence.
Following a two-level adjustment for acceptance of responsibility, Orta Lopez’
total offense level was 22; combined with his criminal-history category of III, his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40666

advisory Guidelines sentencing range was 51 to 63 months’ imprisonment. The
court varied downward and sentenced Orta Lopez, inter alia, to 40 months’
imprisonment.
      First, Orta Lopez contends:       his felony conviction for burglary of a
habitation falls under Texas’ “greater right to possession” theory; therefore, it
does not constitute a conviction for generic burglary under Taylor v. United
States, 495 U.S. 575 (1990); and, accordingly, it is not a conviction for burglary
of a dwelling under Guideline § 2L1.2 and not a crime of violence. Orta Lopez’
claim is foreclosed by United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir.
2013), which rejected an identical argument and affirmed a 16-level sentencing
enhancement under Guideline § 2L1.2(b)(1)(A)(ii) based on a Texas conviction
for burglary of a habitation under Texas Penal Code § 30.02(a)(1). Morales-Mota
was decided after the Government filed its brief. In his reply brief, Orta Lopez
concedes this issue is foreclosed, but continues to raise it in order to preserve it
for possible further review.
      Second, Orta Lopez contends the court erred in failing to award him a
third point for acceptance of responsibility.       He asserts the Government
improperly denied the additional level based on his refusal to plead guilty
pursuant to an agreement wherein he waived his appellate rights. As Orta
Lopez concedes, his contention is foreclosed by United States v. Newsom, 515
F.3d 374, 378-79 (5th Cir. 2008); he raises the issue only to preserve it for
possible further review. (Newsom held a district court cannot award a reduction
under Guideline § 3E1.1 unless a motion is filed by the Government; the
Government, however, can decline to move for an additional acceptance point
based on defendant’s refusal to waive his appellate rights. See id.)
      Third, Orta Lopez contends the court plainly erred in convicting,
sentencing, and entering judgment against him under 8 U.S.C. § 1326(b)(2),
because he was not deported following an “aggravated felony” conviction, as
defined in 8 U.S.C. § 1101(a)(43). He urges the sentence be vacated and

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                                  No. 12-40666

remanded for resentencing or, in the alternative, the judgment be reformed. The
Government agrees the judgment erroneously reflects a conviction under
§ 1326(b)(2), but it contends the judgment should be reformed to reflect a
conviction under § 1326(b)(1) (removal subsequent to other-than-aggravated
felony conviction).
      Having failed to raise the issue in district court, Orta Lopez acknowledges
review is only for plain error. E.g., United States v. Mondragon-Santiago, 564
F.3d 357, 368 (5th Cir. 2009). Orta Lopez must therefore show, inter alia, a clear
or obvious error that affected his substantial rights. United States v. Puckett, 556
U.S. 129, 135 (2009). Orta Lopez’ Texas conviction of burglary of a habitation
does not qualify as an “aggravated felony” for purposes of § 1101(a)(43)(F)
because he was sentenced to deferred-adjudication probation. E.g., id. at 369.
Orta Lopez concedes, however, he cannot show that the error affected his
substantial rights because his sentence, which was below the advisory
Guidelines range, did not exceed the statutory maximum under § 1326(b)(1).
E.g., id.
      AFFIRMED. The judgment is REFORMED to reflect conviction and
sentencing under 8 U.S.C. § 1326(b)(1).




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