IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 15, 2008
No. 07-41277
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSVALDO MENDEZ-GARCIA, also known as Eric Rolondo Alarcon-Muniz
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-346-ALL
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Osvaldo Mendez-Garcia (Mendez) appeals the 92-
month sentence imposed following his guilty plea to illegal entry into the United
States following deportation. Mendez argues that the district court plainly erred
in enhancing his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on
his prior conviction for a crime of violence, the burglary of a habitation. He
argues that the statute under which he was convicted, Tex. Penal Code Ann. §
30.02(a) includes a means to commit the offense that does not meet the definition
*
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should not be published and is not precedent except under the limited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.
No. 07-41277
of a generic burglary as required by the Guidelines to impose such an
enhancement. Mendez also asserts that, although the indictment charged him
conjunctively under two sections of the statute, one section of which satisfied the
definition of generic burglary, his guilty plea did not establish that he committed
the conduct under that section.
Mendez was charged conjunctively in the indictment under TEXAS PENAL
CODE ANN. § 30.02(a)(1) and § 30.02(a)(3), which provide different means of
committing burglary of a habitation. The latter section does not require an
intent to commit a crime at the time of the unlawful entry. § 30.02(a)(3). See
United States v. Herrera-Montes, 490 F.3d 390, 391-92 (5th Cir. 2007). The
record in this case contains no evidence reflecting the specific subsection to
which Mendez pleaded guilty, nor does it contain the factual basis for his plea.
Thus, we cannot determine whether Mendez pleaded guilty to an offense that
meets the definition of a generic burglary. Id. Accordingly, we hold that the
district court erred in imposing the 16-level sentencing enhancement.
Despite this error, reversal is not required. In United States v. Bonilla,
524 F.3d 647, 655-57 (5th Cir. 2008), this court determined that the district court
erred in applying the Guidelines, but it determined that “[n]ot all errors in
determining a defendant’s guideline sentence require reversal.” The court
affirmed the sentence, finding that “because the district court imposed an
alternative non-guidelines sentence, the advisory sentence did not result from
the guidelines error and we need not vacate the sentence on that basis.” 524
F.3d at 659.
In the instant case, the district court made it clear that it would have
imposed the same sentence even if § 2L1.2 were inapplicable. The district
court’s comments reflect that, like the district court in Bonilla, it imposed an
alternative non-guidelines sentence. Moreover, the reasons given by the district
court for the non-guidelines sentence imposed were adequate. See United States
v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
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No. 07-41277
AFFIRMED.
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