     Case: 14-20744      Document: 00513208486         Page: 1    Date Filed: 09/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20744
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 25, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSE DIGNO SANTOS-AVILA, also known as Jose Digna Santos, also known
as Juan Francisco Maldonado-Paz, also known as Jose Santos, also known as
Jose Digno Santos Avila,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-101-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Digno Santos-Avila (Santos) pleaded guilty to illegal reentry after
having been previously deported following an aggravated felony conviction, a
violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to
36 months of imprisonment and a two-year term of supervised release. He
argues that the district court erroneously applied an eight-level offense


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20744    Document: 00513208486     Page: 2   Date Filed: 09/25/2015


                                 No. 14-20744

enhancement under U.S.S.G. § 2L1.2(b)(1)(C) on the ground that his 1998
Texas felony conviction for theft was an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G).    Santos asserts that Texas’s theft statute encompasses
conduct broader than the generic theft offense because the Texas statute
defines theft to include the appropriation of property when it is with consent
from the owner that has been induced through deception or coercion, and we
have defined generic theft as the taking of property without the owner’s
consent. He concedes that this issue is foreclosed by our decision United States
v. Rodriguez-Salazar, 768 F.3d 437, 438 (5th Cir. 2014), in which we held that
the Texas theft statute, Texas Penal Code § 31.03, does not deviate from the
generic crime of theft. However, Santos contends that this decision conflicts
with our earlier decision in Martinez v. Mukasey, 519 F.3d 532, 541-42 (5th
Cir. 2008), in which we held that the federal offense of bank fraud does not
meet the generic definition of theft. Therefore, under the rule of orderliness,
Santos asserts that Martinez provides the governing rule for this matter. In
the alternative, Santos requests an en banc hearing in this matter.
      In our decision in Rodriguez-Salazar, we specifically addressed any
possible conflicts with our earlier decision in Martinez. We reiterated our
holding in Martinez and emphasized that the question of a charged theft
offense was not before the court and therefore, Martinez was not controlling
precedent. Rodriguez-Salazar, 768 F.3d at 438. In light of this distinction and
our analysis of consent in Rodriguez-Salazar, Santos has failed to establish we
violated the rule of orderliness by not adhering to our previous holding in
Martinez. See Rodriguez-Salazar, 768 F.3d at 438.
      The judgment of the district court is AFFIRMED.




                                       2
