     Case: 16-20081       Document: 00513973665         Page: 1     Date Filed: 05/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                     No. 16-20081                                   FILED
                                   Summary Calendar                              May 1, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JESUS LEONARDO MONTALVO DAVILA, also known as Jesus Montalvo,
also known as Jesus L. Montalvo,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-479-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Jesus Leonardo Montalvo Davila pleaded guilty to illegal reentry, in
violation of 8 U.S.C. § 1326(a), (b)(2). He contends the district court erred in
applying the 16-level crime-of-violence enhancement under Sentencing
Guideline § 2L1.2(b)(1)(A)(ii) (2015 ed.), based on his 2012 Texas conviction for
burglary of a habitation, in violation of Texas Penal Code § 30.02(a).



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-20081     Document: 00513973665         Page: 2    Date Filed: 05/01/2017


                                     No. 16-20081

      Although post-Booker, the 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).
      In United States v. Conde-Castaneda, 753 F.3d 172, 175–77 (5th Cir.
2014), our court concluded: § 30.02(a) was divisible because of the differing
elements required for § 30.02(a)(1) and (a)(3); and, a conviction under
§ 30.02(a)(1), but not under § 30.02(a)(3), qualified as generic burglary.
Montalvo claims, however, that Conde-Castaneda has been effectively
overruled by the Supreme Court’s recent decision in Mathis v. United States,
136 S. Ct. 2243, 2253 (2016), which held the modified categorical approach
cannot apply if the statute lists alternative means, rather than elements.
      But, in United States v. Uribe, our court held § 30.02(a) remained
divisible post-Mathis. 838 F.3d 667, 671 (5th Cir. 2016), cert. denied, 2017 WL
661924 (20 Mar. 2017). Therefore, the modified categorical approach applies,
and certain state-court documents may be considered to determine the crime-
of-violence   enhancement’s        applicability   vel   non.     Id.;   see   U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (2015 ed.).
      Montalvo maintains state-court documents do not explicitly state
whether he was convicted under § 30.02(a)(1) or (a)(3), the latter of which does
not qualify as generic burglary.         See Conde-Castaneda, 753 F.3d at 176.



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                                 No. 16-20081

Nonetheless, Montalvo pleaded guilty to the state-court indictment, the
language of which tracked that of § 30.02(a)(1).          A conviction under
§ 30.02(a)(1) “aligns with the generic offense of burglary, and constitutes a
‘burglary of a dwelling’ under the Sentencing Guidelines”. Uribe, 838 F.3d at
671.     Accordingly, the court did not err in applying the crime-of-violence
enhancement. See id.
        AFFIRMED.




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