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

                                                FILED
                                                                March 31, 2009
                               No. 07-51333
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

SERGIO FLORES-CONTRERAS, also known as Caleb Contreras-Flores

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-1637-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Sergio Flores-Contreras (Flores) appeals his 70-month sentence imposed
following his guilty plea conviction for illegally reentering the United States
without permission following deportation. He argues that the district court
erred by relying on the presentence report (PSR) alone to determine that his
South Carolina burglary conviction constituted a crime of violence warranting
a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 07-51333

      Under the discretionary sentencing system established by United States
v. Booker, 543 U.S. 220 (2005), district courts retain a duty to consider the
Sentencing Guidelines, along with the sentencing factors set forth in 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). This
court reviews the sentence imposed for reasonableness in light of those factors.
Id. at 519; Gall v. United States, 128 S. Ct. 586, 596-97 (2007). However,
because Flores failed to object to the imposition of the § 2L1.2(b)(1)(A)(ii)
enhancement, this court reviews for plain error. See United States v. Garza-
Lopez, 410 F. 3d 268, 272 (5th Cir. 2005). To establish plain error, Flores must
prove “(1) there was an error; (2) the error was clear and obvious; and (3) the
error affected the defendant’s substantial rights.” Id. If Flores satisfies his
burden of proof, this court “may exercise its discretion to correct the error only
if the error seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.” Id. (internal quotation marks and citation omitted).
      Section 2L1.2 of the Sentencing Guidelines provides that the offense level
for unlawfully entering or remaining in the United States shall be increased by
16 levels if the defendant has a prior conviction for a “crime of violence.” See
§ 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 defines “crime of violence” as
(1) any specific enumerated offense, including “burglary of a dwelling,” or
(2) “any offense under federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” § 2L1.2, comment. (n.1(B)(iii)). To determine whether a specific
offense constitutes an enumerated offense under § 2L1.2(b)(1)(A)(ii), this court
uses a “common sense approach,” giving the enumerated offense its “ordinary,
contemporary, [and] common meaning.” See United States v. Mungia-Portillo,
484 F.3d 813, 816 (5th Cir. 2007) (internal quotation marks and citations
omitted).
      Flores is correct that the district court erred by relying on the PSR alone
as the basis for a § 2L1.2(b)(1)(A)(ii) enhancement. See Garza-Lopez, 410 F.3d

                                        2
                                 No. 07-51333

at 274-75. On appeal, however, we granted the Government’s unopposed motion
to supplement the record with, inter alia, charging documents relating to the
burglary conviction. See United States v. Martinez-Vega, 471 F.3d 559, 562 (5th
Cir. 2006) (granting Government’s motion to supplement record with state court
indictment to support § 2L1.2 enhancement). The charging documents, now part
of the record, establish that Flores was charged with second degree burglary of
a dwelling in violation of S.C. C ODE A NN. § 16-11-312(A)(1976). Section 16-11-
312(A) states that a “person is guilty of burglary in the second degree if the
person enters a dwelling without consent and with intent to commit a crime
therein.”
      Flores has not raised as an issue, either in his initial brief or in a reply
brief, whether his conviction for burglary of a dwelling was a crime of violence
under § 2L1.2. Accordingly, Flores has waived the argument. See United States
v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).
      AFFIRMED.




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