     Case: 16-40048       Document: 00513981089         Page: 1     Date Filed: 05/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fif h Circuit
                                     No. 16-40048                                     FILED
                                   Summary Calendar                                May 5, 2017
                                                                                 Lyle W. Cayce
                                                                                      Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ELMER NEIVA-OREJUELA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:15-CR-1307-1


Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Elmer Neiva-Orejuela was sentenced to 41 months of imprisonment,
following his guilty plea to illegal reentry after removal, in violation of 8 U.S.C.
§ 1326. He contends the district court erred by applying the 16-level crime-of-
violence enhancement, based on his prior Texas conviction for burglary of a
habitation. U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015 ed.)




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-40048     Document: 00513981089      Page: 2   Date Filed: 05/05/2017


                                  No. 16-40048

      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Neiva was convicted of burglary under Texas Penal Code § 30.02, a
divisible statute. See United States v. Uribe, 838 F.3d 667, 670–71 (5th Cir.
2016), cert. denied, 2017 WL 661924 (20 Mar. 2017). Therefore, under the
modified categorical approach, the court may consider certain state-court
documents. Id.
      Those documents demonstrate that Neiva pleaded guilty under
§ 30.02(a)(1), which, for purposes of the crime-of-violence enhancement,
constitutes generic burglary of a dwelling. Id. Accordingly, the court did not
err in applying the enhancement. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015 ed.);
Uribe, 838 F.3d at 671.
      AFFIRMED.




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