     Case: 11-40397     Document: 00511970090         Page: 1     Date Filed: 08/27/2012




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

                                                                            FILED
                                                                          August 27, 2012
                                     No. 11-40397
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MIGUEL ANGEL MENDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:10-CR-1177-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Miguel Angel Mendez (Mendez) appeals the sentence of 42 months of
imprisonment imposed following his guilty plea conviction of possession with
intent to distribute 17.3 kilograms of marijuana, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(D). He argues that the district court erred by applying the
career offender enhancement of U.S.S.G. § 4B1.1(a) (2010), because his Texas
convictions for burglary of a habitation should not have counted as two prior
felony convictions.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40397      Document: 00511970090     Page: 2   Date Filed: 08/27/2012

                                    No. 11-40397

         The career offender enhancement applies if, inter alia, “the defendant has
at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” § 4B1.1(a)(3). Mendez preserved his argument that he did
not have two prior felony convictions by objecting on this basis in the district
court.     This court therefore reviews the district court’s application of the
Guidelines de novo and reviews its factual findings for clear error. See United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
         As the district court determined, Mendez had two Texas convictions of
burglary of a habitation, one occurring in 1993 and the other in 1997. In
connection with the 1993 burglary conviction, Mendez was originally sentenced
to a term of probation, which was revoked on July 7, 1997, the same date that
he was sentenced for the 1997 burglary conviction. He was then sentenced to
concurrent terms of imprisonment. The two burglary convictions were separated
by an intervening arrest. Accordingly, the district court properly counted the
convictions as two prior felony convictions. See §§ 4A1.2(a)(2), 4B1.2(c).
         The judgment of the district court is AFFIRMED.




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