     Case: 16-41514      Document: 00514065146         Page: 1    Date Filed: 07/10/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-41514                                FILED
                                  Summary Calendar                          July 10, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROGELIO ORTIZ-MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-498-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Rogelio Ortiz-Martinez appeals the 77-month sentence imposed
following his guilty plea conviction for being present in the United States
following removal. He contends that the district court erred by enhancing his
sentence under § 2L1.2(b)(1)(A)(ii) of the 2015 version of the Sentencing
Guidelines.     The enhancement was based on a determination that his
conviction for burglary of a habitation under Texas Penal Code § 30.02 was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41514    Document: 00514065146     Page: 2   Date Filed: 07/10/2017


                                 No. 16-41514

equivalent to a conviction for the generic offense of “burglary of a dwelling.”
Ortiz-Martinez argues that, in light of Mathis v. United States, 136 S. Ct. 2243
(2016), § 30.02 defines a single indivisible offense too broad to meet that
generic definition, and that the district court erred when it narrowed his
offense of conviction using the modified categorical approach.
      In United States v. Conde-Castaneda, 753 F.3d 172, 175-76 (5th Cir.
2014), this court held that § 30.02 is a divisible statute and that courts may
apply the modified categorical approach to determine which of the three
subsections in § 30.02(a) formed the basis of a defendant’s conviction. This
court reaffirmed that decision in United States v. Uribe, 838 F.3d 667, 669-71
(5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017), specifically determining
that Mathis did not alter its prior holding. Although Ortiz-Martinez contends
that Uribe was wrongly decided, he concedes that his argument is foreclosed
by that decision.
      Accordingly, Ortiz-Martinez’s motion for summary disposition is
GRANTED. The judgment of the district court is AFFIRMED.




                                       2
