     Case: 09-20224     Document: 00511039533          Page: 1    Date Filed: 03/02/2010




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

                                                  FILED
                                                                            March 2, 2010
                                     No. 09-20224
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SALVADOR ALMAZAN-MARTINEZ, also known as Salvador Martinez
Almazan, also known as Ciro Diaz Arrellano, also known as Fernando Diaz, also
known as Ciro Ordonez Diaz,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-685-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Salvador Almazan-Martinez pleaded guilty to violating 8 U.S.C. § 1326 by
illegally reentering the United States. Finding that Almazan-Martinez had a
prior Texas conviction for burglary of a habitation, the district court enhanced
his base offense level because he had been convicted of a felony crime of




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20224         Document: 00511039533 Page: 2            Date Filed: 03/02/2010
                                      No. 09-20224

violence.1 The court sentenced Almazan-Martinez to a below-guidelines term of
48 months’ imprisonment.
      In the district court, Almazan-Martinez contended that the enhancement
was improper because Texas’s definition of habitation was broader than the
generic concept of dwelling encompassed by the guidelines and thus his
conviction was not for a crime of violence. Almazan-Martinez has not reiterated
that argument on appeal; he instead contends that his Texas crime was not even
burglary. He asserts the government did not show that he did not consider
himself an invitee on the premises or that he intended to take anything other
than items belonging to him.
      Because the arguments Almazan-Martinez now advances were not first
presented to the district court, our review is for plain error only.2                       To
demonstrate plain error, Almazan-Martinez must show a forfeited error that is
obvious and that affects his substantial rights.3 If the he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.4
      The guidelines provide for an increase of 16 levels in the offense level for
unlawfully entering or remaining in the United States if the defendant was
previously convicted of a crime of violence.5              The commentary specifically
enumerates several offenses that qualify as crimes of violence, including the
burglary of a dwelling.6 Under Texas law, a person commits burglary if he


      1
          See U.S.S.G. § 2L1.2(b)(1)(A)(ii).
      2
         See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), cert.
denied, 130 S. Ct. 192 (2009).
      3
          See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      4
          Id.
      5
          § 2L1.2(b)(1)(A)(ii).
      6
          § 2L1.2 cmt. n.1(B)(iii).

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                                          No. 09-20224

enters a building closed to the public, or a habitation, without the consent of the
owner and with the intent to commit a felony, theft, or an assault.7 Burglary of
a habitation under Texas law qualifies as a crime of violence as defined in the
guidelines.8
         In determining whether a prior offense is a crime of violence, we look to
the elements of the offense as defined by statute rather than to the facts of the
defendant’s conduct.9 In making that determination, we may consider certain
adjudicative records, such as the state indictment and the state court judgment
of conviction.10
         Almazan-Martinez’s Texas indictment charged that he had “unlawfully,
with intent to commit theft, enter[ed] a habitation owned by” another and
without that person’s consent. This matches the language used to define the
Texas crime of burglary of a habitation—a crime of violence—which proscribes
entry into “a habitation, or a building (or any portion of a building) not then open
to the public, with intent to commit a felony, theft, or an assault.” 11 Further, at
rearraignment Almazan-Martinez admitted the truth of the Government’s
recitation of the factual basis for his plea, which included a description of his
Texas conviction for the offense of burglary of a habitation with intent to commit
theft.




         7
             See TEX . PENAL CODE § 30.02(a)(1).
         8
             United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005).
         9
         United States v. Carbajal-Diaz, 508 F.3d 804, 807-08 (5th Cir. 2007), cert. denied, 128
S. Ct. 1731 (2008).
         10
         See United States v. Garcia-Arellano, 522 F.3d 477, 480-81 (5th Cir. 2008), cert.
denied, 129 S. Ct. 353 (2008).
         11
         T     EX .   PENAL CODE § 30.02(a)(1).

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                                    No. 09-20224

     The district court did not commit error, much less plain error, in imposing
Almazan-Martinez’s sentence.12 The judgment is AFFIRMED.




     12
          See Puckett, 129 S. Ct. at 1429.

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