     Case: 09-20637     Document: 00511138080          Page: 1    Date Filed: 06/10/2010




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

                                                  FILED
                                                                            June 10, 2010
                                     No. 09-20637
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALFRED RIASCOS-GRANJA, also known as Alfred Riascos, also known as
Alfredo Riascos, also known as Gerardo Bonano, also known as Gerardo Calzada
Bonano, also known as Alfred Riascos Granja,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-112-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Alfred Riascos-Granja (Riascos) appeals from his
conviction of being found in the United States illegally following deportation.
        Riascos received a 16-level adjustment to his offense level pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii). He contends that his Texas conviction of burglary
of a habitation was not a crime of violence because Texas’s burglary statute may



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20637   Document: 00511138080 Page: 2         Date Filed: 06/10/2010
                                No. 09-20637

be violated by conduct falling outside the definition of generic burglary, as the
definition of “habitation” in Texas law includes structures other than
“dwellings.” He argues that his contention is not foreclosed by United States v.
Garcia-Mendez, 420 F.3d 454 (5th Cir. 2006), because that case was decided
under the plain error standard of review. He further argues that the district
court erred by relying solely on the presentence report (PSR) in his case to
determine whether he had been convicted of burglary of a habitation with intent
to commit theft.
      We review the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The government bears the
burden of proving by a preponderance of the relevant and reliable evidence the
facts supporting a sentencing adjustment, including prior convictions. United
States v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008).
      The Texas offense of burglary of a habitation with intent to commit theft
is a crime of violence. Garcia-Mendez, 420 F.3d at 456-57. This court in Garcia-
Mendez rejected the argument that the relevant statute may be violated by
conduct falling outside the definition of generic burglary because the definition
of “habitation” in Texas law includes structures other than dwellings. Id. The
standard of review was irrelevant to the outcome in Garcia-Mendez. See id.
      Riascos raises his contention that the district court erred by relying solely
on the PSR for the first time on appeal. We review his contention under the
plain error standard. See United States v. Rojas-Luna, 522 F.3d 502, 507 (5th
Cir. 2008). To show plain error, the defendant must show a forfeited error that
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If the defendant makes such a showing, we
have the discretion to correct the error but only if it “‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.’” Id. (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).

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                                 No. 09-20637

      “[A] district court is not permitted to rely [solely] on a PSR’s
characterization of a defendant’s prior offense for enhancement purposes.”
United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).          A court
commits clear or obvious error when it relies entirely “on a PSR to establish
sentencing facts that increase the penalty beyond the statutory maximum.”
United States v. Ramirez, 557 F.3d 200, 204 (5th Cir. 2009). “However, reliance
on a defendant’s admission of facts that are contained in the PSR is permissible”
on plain error review. Id. Reliance on counsel’s representations is permissible
as well. See United States v. Fambro, 526 F.3d 836, 849-50 (5th Cir. 2008).
      Riascos acknowledged during his rearraignment that he had been
convicted of burglary of a habitation with intent to commit theft. Moreover,
counsel conceded that her objection to the use of a burglary conviction as a crime
of violence was foreclosed by this court’s precedent. Trial counsel maintained
her position at the sentencing hearing, which was held after the probation officer
sent counsel the indictments and judgments relevant to the prior convictions
used to support the 16-level adjustment.
      Riascos does not allege that trial counsel did not receive the copies or that
the documents did not reflect convictions of burglary of a habitation with intent
to commit theft. Trial counsel made no affirmative representations about the
documents, but she could have objected to them if an objection was warranted.
      Riascos’s acknowledgment at the plea hearing and counsel’s concession
that her objection was foreclosed are sufficient for us to find no reversible plain
error as to the absence of documents regarding his state convictions from the
record. See Ramirez, 557 F.3d at 204; Fambro, 536 F.3d at 849-50. Moreover,
because the documents had been disclosed and Riascos does not indicate that
any objection was warranted, he has not shown that any error by the district
court affected his substantial rights. See Puckett, 129 S. Ct. at 1429.
      AFFIRMED.



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