United States v. Daniel Morin-Gutierrez

Case: 14-40338 Document: 00512869230 Page: 1 Date Filed: 12/15/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-40338
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
December 15, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

v.

DANIEL MORIN-GUTIERREZ,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-1560-1

Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Daniel Morin-Gutierrez appeals the sentence imposed following his
guilty plea conviction of being an alien found in the United States without
permission, after deportation. He argues that the district court erred by
enhancing his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a finding
that his deportation occurred following his Texas conviction of burglary of a
habitation, an enumerated crime of violence.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40338 Document: 00512869230 Page: 2 Date Filed: 12/15/2014

No. 14-40338

As Morin-Gutierrez did not challenge his sentence on this ground in the
district court, we will review his challenge to the decision for plain error only.
See Puckett v. United States, 556 U.S. 129, 135 (2009). To prevail on plain-
error review, Morin-Gutierrez must show that an error occurred, that the error
was clear or obvious, and that the error affected his substantial rights. Id. If
he establishes those factors, the decision to correct the forfeited error is within
our sound discretion, which we will not exercise unless the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
We apply a modified categorical approach to determine whether a
defendant’s prior conviction constituted a crime of violence for purposes of
§ 2L1.2. United States v. Conde-Castaneda, 753 F.3d 172, 177 (5th Cir.), cert.
denied, 135 S. Ct. 311 (2014). In the instant case, the documentation
submitted to the sentencing court established that Morin-Gutierrez was
convicted under Texas Penal Code Ann. § 30.02(a)(1) for entering a habitation
without the effective consent of the owner with the intent to commit a theft. A
conviction under § 30.02(a)(1) qualifies as a generic burglary offense because
§ 30.02(a)(1) includes the element of specific intent to commit a crime. United
States v. Constante, 544 F.3d 584, 585-86 (5th Cir. 2008). Accordingly, the
district court correctly imposed the § 2L1.2 enhancement. See Conde-
Castaneda, 753 F.3d at 178-79. Although Morin-Gutierrez argues that we
must also determine whether the theft offense he intended to commit at the
time he entered the habitation meets the generic definition of a theft offense,
he does not cite to any precedent specifically requiring such an analysis. He
has not shown clear or obvious error in that regard. See United States v. Evans,
587 F.3d 667, 671 (5th Cir. 2009).
The judgment of the district court is AFFIRMED.

2