    Case: 12-40491     Document: 00512107204     Page: 1   Date Filed: 01/09/2013




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

                                                                   FILED
                                                                  January 9, 2013
                                No. 12-40491
                              Summary Calendar                    Lyle W. Cayce
                                                                       Clerk




UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

versus

FRANCISCO MORALES-MOTA,

                                            Defendant-Appellant.




                 Appeal from the United States District Court
                      for the Southern District of Texas




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Francisco Morales-Mota pleaded guilty, without the benefit of a plea agree-
ment, of being unlawfully present in the United States after having been
deported. His offense level was enhanced by sixteen under U.S.S.G. § 2L1.2(b)-
(1)(A)(ii) based on a conviction of burglary of a habitation with intent to commit
theft, which was determined to be a crime of violence (“COV”). Morales-Mota
ultimately received a forty-six-month sentence, which was at the bottom of the
     Case: 12-40491       Document: 00512107204          Page: 2     Date Filed: 01/09/2013

                                       No. 12-40491

advisory guideline range.
       Morales-Mota challenges the enhancement, contending that Texas’s
burglary-of-a-habitation offense falls outside the generic, contemporary defini-
tion of burglary and thus does not constitute a COV. Because Morales-Mota did
not raise that objection in the district court, our review is for plain error. See
United States v. Chavez-Hernandez, 671 F.3d 494, 497-99 (5th Cir. 2012). To
succeed under that standard, Morales-Mota must show an error that is clear or
obvious and that affects his substantial rights, but even so, we generally will
exercise our discretion to correct the error only if it “seriously affect[s] the fair-
ness, integrity or public reputation of judicial proceedings.” Puckett v. United
States, 556 U.S. 129, 135 (2009) (internal quotation marks and citation omitted).
       Section 2L1.2(b)(1)(A)(ii) provides for an increase of sixteen to a base
offense level if the defendant was previously deported after being convicted of a
COV. Among the enumerated COVs listed in the guideline commentary is burg-
lary of a dwelling. § 2L1.2, comment. (n.1(B)(iii)). To determine whether a par-
ticular conviction is for an enumerated COV, we compare the generic, contempo-
rary definition of the enumerated crime with the conduct described in the stat-
ute of conviction. United States v. Lopez-DeLeon, 513 F.3d 472, 474 (5th Cir.
2008). If the statute’s definition of an offense is broader than the generic defini-
tion, that offense cannot serve as a predicate for the adjustment. United States
v. Sanchez, 667 F.3d 555, 561 (5th Cir. 2012).
       The generic, contemporary definition of burglary of a dwelling is the
unlawful or unprivileged entry into, or remaining in, a building, structure, tent,
or vessel used for human habitation, with intent to commit a crime.1 The statute
of convictionSSTEX. PENAL CODE § 30.02(a)(1)SSmakes it a crime to enter into a
habitation or building not open to the public, without consent of the owner,



       1
        See United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007); United States
v. Ortega-Gonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007).

                                              2
     Case: 12-40491       Document: 00512107204         Page: 3     Date Filed: 01/09/2013

                                       No. 12-40491

intending to commit a felony, theft, or assault. Morales-Mota’s argument hinges
on the definition of “owner,” which under Texas law includes a person who has
“a greater right to possession of the property than the actor.” TEX. PENAL CODE
§ 1.07(35)(A). According to Morales-Mota, because a person can be convicted of
burglary of a habitation even if he has a legitimate right to possess the property,
the Texas statute is broader than the generic definition of burglary of a dwelling.
       In United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005),
we held that burglary of a habitation under § 30.02(a)(1) constitutes burglary of
a dwelling and supports an enhancement under § 2L1.2, but we did not address
Morales-Mota’s contention. Recently we rejected a materially indistinguishable
argument in United States v. Joslin, No. 11-40863, 2012 WL 3488717, at *3-*4
(5th Cir. Aug. 14, 2012) (per curiam) (unpublished), deciding that Texas’s defini-
tion of “owner” did not bring its burglary-of-a-habitation statute outside the gen-
eric definition of burglary for purposes of the Armed Career Criminal Act
(“ACCA”). Id.
       In Joslin, we relied on the Supreme Court’s observation that Congress
listed burglary as an enumerated offense in the ACCA because of its “‘inherent
potential for harm to persons.’” Id. at *3 (quoting Taylor v. United States, 495
U.S. 575, 588 (1990)). “Merely maintaining an inferior possessory interest in a
habitation does not extinguish the potential violence that may result when a per-
son enters a habitation with intent to commit theft.” Id. at *4. Though Joslin
is unpublished and thus not precedential, it is instructive, its reasoning per-
suasive. See 5TH CIR. R. 47.5.4; Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th
Cir. 2006). Accordingly, the enhancement in this case was proper.2
       The judgment of sentence is AFFIRMED.



       2
         See United States v. Najera-Mendoza, 683 F.3d 627, 631 & n.3 (5th Cir. 2012) (employ-
ing the same analysis to determine whether an offense is a violent felony for purposes of the
ACCA and whether an offense is a COV for purposes of the sentencing guidelines).

                                              3
