Case: 12-40857 Document: 00512213365 Page: 1 Date Filed: 04/18/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 18, 2013
No. 12-40857
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CORNELIO MORONES-VARGAS, also known as Rigoberto Gonzalez-Zuniga,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-315-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Cornelio Morones-Vargas appeals the 70-month sentence imposed
following his guilty-plea conviction for illegal reentry after deportation. He
asserts that the district court erred in imposing a 16-level enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on its determination that his
prior Texas burglary-of-a-habitation conviction was a crime of violence.
Specifically, he argues that his conviction was not for generic burglary because
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40857 Document: 00512213365 Page: 2 Date Filed: 04/18/2013
No. 12-40857
the Texas Penal Code uniquely includes burglary convictions under a “greater
right to possession” theory.
Because he objected to the enhancement in the district court on this
ground, we review the issue de novo. See United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). We agree with the panel that recently rejected
this contention, finding persuasive its reasoning that “[m]erely maintaining an
inferior possessory interest in a habitation does not extinguish the potential
violence that may result when a person enters a habitation with the intent to
commit theft.” United States v. Joslin, 487 F. App’x 139, 141-43 (5th Cir. 2012).
See also United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir. 2013)
(affirming on plain-error review a 16-level sentencing enhancement under
Section 2L1.2(b)(1)(A)(ii) based on a Texas conviction for burglary of a habitation
under Texas Penal Code Section 30.02(a)(1)). Accordingly, the judgment of the
district court is AFFIRMED.
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