United States v. Marco Ovalle-Castillo

Case: 12-40670 Document: 00512241376 Page: 1 Date Filed: 05/14/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
May 14, 2013
No. 12-40670
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

MARCO ANTONIO OVALLE-CASTILLO,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-384-1

Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Marco Antonio Ovalle-Castillo appeals his 57-month sentence for having
been found unlawfully in the United States following deportation. He contends
that the district court plainly erred by imposing the 16-level crime of violence
enhancement in U.S.S.G. § 2L1.2 based upon his prior conviction for burglary of
a habitation with intent to commit theft, in violation of Texas Penal Code
§ 30.02(a)(1). According to Ovalle-Castillo, the Texas offense is broader than the
enumerated offense of burglary of a dwelling because Texas defines “owner” of

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40670 Document: 00512241376 Page: 2 Date Filed: 05/14/2013

No. 12-40670

a habitation to include a person who has “a greater right to possession of the
property than the actor.”
Because Ovalle-Castillo did not object to the enhancement in the district
court on the basis he now advances, we review for plain error. See United States
v. Chavez-Hernandez, 671 F.3d 494, 497-99 (5th Cir. 2012). We rejected a
materially indistinguishable argument in United States v. Morales-Mota, 704
F.3d 410, 412-13 (5th Cir. 2013), petition for cert. filed (Apr. 8, 2013)
(No. 12-9676). In light of Morales-Mota, we find no error here, plain or
otherwise. See id.
AFFIRMED.