     Case: 13-10760      Document: 00512780304         Page: 1    Date Filed: 09/24/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10760
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 24, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MIGUEL ANGEL MACIAS-FUENTES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-19-1


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
       Miguel Angel Macias-Fuentes pleaded guilty to having been found
unlawfully in the United States following deportation, and he was sentenced
to 120 months of imprisonment and three years of supervised release. The
district court indicated that the sentence, which was above the advisory
guidelines range of 77 to 96 months, was a variance under 18 U.S.C. § 3553(a)
and, alternatively, an upward departure under U.S.S.G. § 4A1.3. On appeal,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10760    Document: 00512780304      Page: 2   Date Filed: 09/24/2014


                                 No. 13-10760

Macias-Fuentes presents two procedural challenges to the 120-month
sentence.    He does not challenge the substantive reasonableness of the
sentence.
      Macias-Fuentes first argues that          his sentence is     procedurally
unreasonable because the district court misinterpreted U.S.S.G. §§ 4A1.3 and
5K2.0 in determining that an above-guidelines-range sentence was warranted.
To the extent Macias-Fuentes challenges the sentence as an upward departure
under the Guidelines, any alleged procedural error was harmless. See United
States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007). As noted above, the
district court alternatively imposed a non-guidelines variance; neither § 4A1.3
nor § 5K2.0 applies to variances. See id.; United States v. Gutierrez-Hernandez,
581 F.3d 251, 255 (5th Cir. 2009).
      Acknowledging the alternative sentencing variance, Macias-Fuentes
contends that the district court nonetheless was influenced by an erroneous
departure standard regarding underrepresentation of criminal history and
risk of recidivism.   In support, he argues that courts must consider and
correctly apply the Guidelines, including the departure provisions, before
imposing a variance under § 3553(a). However, the case upon which he relies
says nothing about consideration of the guidelines departure provisions in
relation to imposing a variance, or non-guidelines sentence. See Gutierrez-
Hernandez, 581 F.3d at 256 (“Without the correct guideline range, the court
varies from the wrong point.”) (emphasis added).             Here, the record
demonstrates that the 120-month sentence was an upward variance from the
guidelines range based on the factors set forth in § 3553(a), as thoroughly
articulated by the district court. Macias-Fuentes has not shown any error in
the district court’s determination that an above-guidelines-range sentence was
warranted.



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    Case: 13-10760     Document: 00512780304      Page: 3   Date Filed: 09/24/2014


                                  No. 13-10760

      In his second issue on appeal, Macias-Fuentes contends that the district
court plainly erred in applying the 16-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A), based upon his prior felony conviction for a “crime of violence,”
namely, the Texas offense of burglary of a habitation. He argues that his Texas
burglary conviction does not qualify as a crime of violence under
§ 2L1.2(b)(1)(A), because the Texas burglary statute criminalizing burglary of
a habitation is not divisible and includes conduct that does not constitute
“burglary of a dwelling” under the Guidelines. Further, he asserts that his
judicial confession is insufficient to narrow the offense to a qualifying form of
burglary.
      After briefing was completed, we issued an opinion in United States v.
Conde-Castaneda, 753 F.3d 172, 176-78 (5th Cir. 2014), cert. filed, No. 14-6009
(U.S. Aug. 25, 2014), wherein we held that § 30.02 of the Texas Penal Code was
divisible and that a written judicial confession containing an admission to two
types of burglary prescribed in the Texas statute, specifically § 30.02(a)(1) and
§ 30.02(a)(3), was sufficient to establish that the defendant was convicted of
both offenses.   Macias-Fuentes’s written judicial confession contained an
admission to “each and every act” alleged in the indictment and thus
sufficiently establishes that he was convicted of violating both § 30.02(a)(1) and
§ 30.02(a)(3). See Conde-Castaneda, 753 F.3d at 178. Because § 30.02(a)(1)
qualifies as a crime of violence under the Guidelines, the district court did not
err in applying the 16-level enhancement. See id. at 176-79.
      AFFIRMED.




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