Case: 12-40987 Document: 00512223661 Page: 1 Date Filed: 04/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 29, 2013
No. 12-40987
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCELO MUNOZ-GUERRERO,
Defendant-Appellant
...........................................................................
Consolidated with No. 12-41020
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARCELO MUNOZ-GUERRERO, also known as Francisco Hernandez,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-377-1
Case: 12-40987 Document: 00512223661 Page: 2 Date Filed: 04/29/2013
No. 12-40987 c/w No. 12-41020
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Marcelo Munoz-Guerrero (Munoz) pleaded guilty to being found in the
United States illegally after deportation and was sentenced to 51 months in
prison and three years of supervised release. This conviction triggered the
revocation of his supervised release on an earlier conviction for illegal re-entry.
Munoz pleaded true to two violations of the conditions of his supervised release.
The district court sentenced him to 24 months in prison on one violation and to
13 months on the other, to be served concurrently with each other and
consecutive to the 51-month sentence imposed for the new illegal reentry
conviction. Munoz timely noticed his appeal in each case, now consolidated
before this court.
The Government’s motion for summary affirmance is DENIED. Its
alternative motion for an extension of time within which to file a brief is
DENIED as unnecessary as the arguments are adequately addressed in the
Government’s motion and Munoz’s brief.
Munoz challenges the 51-month sentence for the illegal reentry conviction
in Case No. 12-40987. He argues that the district court plainly erred in
imposing a 12-level enhancement for committing a crime of violence, pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii). He argues that his prior Texas burglary of a
dwelling with intent to commit theft was not a crime of violence because Texas
law too broadly defines the “owner” of a habitation as a person with merely
“greater right to possession” than the criminal actor. We review only for plain
error because the issue is raised for the first time on appeal. See United States
v. Ramirez, 557 F.3d 200, 205 (5th Cir. 2009).
*
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.
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No. 12-40987 c/w No. 12-41020
We recently rejected the same argument in United States v. Morales–Mota,
704 F.3d 410, 412 (5th Cir. 2013) (affirming a 16–level sentencing enhancement
under § 2L1.2(b)(1)(A)(ii) based on a Texas conviction for burglary of a habitation
under § 30.02(a)). Accordingly, the district court’s application of the 12-level
enhancement was not error, plain or otherwise. The judgment in Case No. 12-
40987 is AFFIRMED.
Munoz also appeals the revocation sentences imposed in Case No. 12-
41020, arguing that, in light of the district court’s error in applying the 12-level
enhancement, the revocation sentences are plainly unreasonable. Because
Munoz did not object to the reasonableness of his revocation sentences in the
district court, our review is for plain error. See United States v. Whitelaw, 580
F.3d 256, 259-60 (5th Cir. 2009). Revocation sentences that are within the
sentencing range determined under the applicable Sentencing Guidelines policy
statements are presumptively reasonable. United States v. Lopez-Velasquez, 526
F.3d 804, 809 (5th Cir. 2008).
To the extent his argument is premised on a finding that the district court
erred in finding that Munoz’s prior conviction was a crime of violence, this
argument necessarily fails. Even assuming arguendo that a 16-level crime of
violence enhancement was improperly applied to his 2006 sentence, Munoz does
not cite any authority for his assertion that this is a factor that the district court
should have considered in determining his revocation sentence. Indeed, Munoz’s
argument is not supported by the relevant statutes or the Sentencing
Guidelines. See 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4(a), p.s.; § 7B1.1, p.s.
Moreover, Munoz may not use his appeal of his revocation sentences to challenge
the underlying sentence. See United States v. Willis, 563 F.3d 168, 170 (5th Cir.
2009).
Munoz has not shown that the district court plainly erred in determining
the revocation sentences, see Whitelaw, 580 F.3d at 259-60, and he has not
rebutted the presumption that his revocation sentences are substantively
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Case: 12-40987 Document: 00512223661 Page: 4 Date Filed: 04/29/2013
No. 12-40987 c/w No. 12-41020
reasonable, see Lopez-Velasquez, 526 F.3d at 809. Accordingly, the judgment in
Case No. 12-41020 is AFFIRMED.
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