Case: 16-41514 Document: 00514065146 Page: 1 Date Filed: 07/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41514 FILED
Summary Calendar July 10, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROGELIO ORTIZ-MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:16-CR-498-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Rogelio Ortiz-Martinez appeals the 77-month sentence imposed
following his guilty plea conviction for being present in the United States
following removal. He contends that the district court erred by enhancing his
sentence under § 2L1.2(b)(1)(A)(ii) of the 2015 version of the Sentencing
Guidelines. The enhancement was based on a determination that his
conviction for burglary of a habitation under Texas Penal Code § 30.02 was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41514 Document: 00514065146 Page: 2 Date Filed: 07/10/2017
No. 16-41514
equivalent to a conviction for the generic offense of “burglary of a dwelling.”
Ortiz-Martinez argues that, in light of Mathis v. United States, 136 S. Ct. 2243
(2016), § 30.02 defines a single indivisible offense too broad to meet that
generic definition, and that the district court erred when it narrowed his
offense of conviction using the modified categorical approach.
In United States v. Conde-Castaneda, 753 F.3d 172, 175-76 (5th Cir.
2014), this court held that § 30.02 is a divisible statute and that courts may
apply the modified categorical approach to determine which of the three
subsections in § 30.02(a) formed the basis of a defendant’s conviction. This
court reaffirmed that decision in United States v. Uribe, 838 F.3d 667, 669-71
(5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017), specifically determining
that Mathis did not alter its prior holding. Although Ortiz-Martinez contends
that Uribe was wrongly decided, he concedes that his argument is foreclosed
by that decision.
Accordingly, Ortiz-Martinez’s motion for summary disposition is
GRANTED. The judgment of the district court is AFFIRMED.
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