     Case: 16-40108      Document: 00514008950         Page: 1    Date Filed: 05/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-40108
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 26, 2017
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSE PRADO-MENDOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:15-CR-546-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Prado-Mendoza pleaded guilty to a single-count indictment
charging him with illegal reentry by a previously deported alien in violation of
8 U.S.C. § 1326(a) and (b). The district court applied the 16-level “crime of
violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014) based on
Prado-Mendoza’s prior conviction for burglary of a habitation in violation of
Texas Penal Code § 30.02(a). For the first time on appeal, Prado-Mendoza


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40108     Document: 00514008950      Page: 2   Date Filed: 05/26/2017


                                  No. 16-40108

argues that in light of Mathis v. United States, 136 S. Ct. 2243 (2016), the
district court plainly erred by treating his Texas conviction for burglary of a
habitation as a crime of violence for purposes of the § 2L1.2(b)(1)(A)(ii)
enhancement. The Government argues that Prado-Mendoza waived this issue
because counsel agreed that Prado-Mendoza’s prior offense warranted the 16-
level enhancement, and that, as a waived error, Prado-Mendoza’s argument is
entirely unreviewable. We pretermit the issue whether Prado-Mendoza has
waived the argument he raises, as his argument fails under the less stringent
plain error standard of review. See United States v. Rodriguez, 523 F.3d 519,
525 (5th Cir. 2008).
      To establish plain error, Prado-Mendoza must demonstrate a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this
court has the discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      In United States v. Conde-Castaneda, 753 F.3d 172, 176-77 (5th Cir.
2014), we held that § 30.02(a) is a divisible statute and that a conviction under
§ 30.02(a)(1) qualifies as a generic burglary. We recently revisited this holding
in light of Mathis and decided that § 30.02(a) is “elements-based” and divisible,
and the modified categorical approach applies. United States v. Uribe, 838 F.3d
667, 670-71 (5th Cir. 2016), cert. denied, 2017 WL 661924 (Mar. 20, 2017) (No.
16-7969). Prado-Mendoza’s state court documents clearly show that he was
convicted under subsection (a)(1) of the Texas burglary statute. Accordingly,
the district court properly applied the 16-level “crime of violence” enhancement
under § 2L1.2(b)(1)(A)(ii), and Prado-Mendoza fails to show error, plain or
otherwise.
      AFFIRMED.



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