     Case: 15-10906      Document: 00513584861         Page: 1    Date Filed: 07/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-10906                                    FILED
                                  Summary Calendar                               July 8, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERT STRECKER,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:15-CR-63-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Robert Strecker appeals the sentence imposed following his guilty plea
conviction for being a felon in possession of a firearm. He argues that the
district court erred in assessing a base offense level of 24 pursuant to U.S.S.G.
§ 2K2.1(a)(2), because his prior Texas convictions for burglary of a habitation
and attempted burglary of a habitation were not crimes of violence. Strecker
argues that the state court records do not indicate whether he was convicted


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-10906

under Texas Penal Code § 30.02 (a)(1) or Texas Penal Code § 30.02(a)(3) for his
burglary of a habitation and his attempted burglary convictions. Because
§ 30.02(a)(3) does not constitute generic burglary, he asserts that the statute
can be violated by means beyond the generic, contemporary meaning of
burglary.
      Strecker raises the same arguments now as he raised in the district
court. Therefore, this court reviews the district court’s determination that
attempted burglary and burglary were crimes of violence de novo. See United
States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012).
      The documentation submitted to the sentencing court established that
Strecker was convicted under § 30.02(a)(1) for both convictions. A conviction
under § 30.02(a)(1) qualifies as a generic burglary offense. See United States
v. Castaneda, 740 F.3d 169, 173 (5th Cir. 2013). Moreover, Strecker’s attempt
argument is without merit because the commentary to the Guidelines
specifically states that a crime of violence includes attempting to commit a
crime of violence. U.S.S.G. § 4B1.2, comment. (n.1). Accordingly, the district
court did not err in assessing a base offense level of 24 based on these
convictions. See id.; Chavez-Hernandez, 671 F.3d at 497.
      Strecker also argues that the district court erred in assigning criminal
history points to his prior Texas conviction for burglary of a habitation because
that conviction was relevant conduct to his conviction for being a felon in
possession of a firearm. Because Strecker did not raise this argument in the
district court, review is for plain error. See Chavez-Hernandez, 671 F.3d at
497. The district court did not err, plainly or otherwise, in assigning criminal
history points to the burglary of a habitation conviction because even though
there were no intervening arrests, the sentences for his burglary of a
habitation conviction and his felon in possession of a firearm conviction did not



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                                No. 15-10906

result from the same charging instrument and the sentences were not imposed
on the same day. See U.S.S.G. § 4A1.2(a)(2). The judgment of the district court
is AFFIRMED.




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