Case: 15-10249 Document: 00514027750 Page: 1 Date Filed: 06/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-10249
Fifth Circuit
FILED
Summary Calendar June 9, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
NILSON MADRID-MARTINEZ,
Defendant - Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-113-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Nilson Madrid-Martinez, a citizen and national of Honduras, pleaded
guilty unconditionally, as discussed infra, to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He was
apprehended by United States Immigration Customs and Enforcement
Officers responding to information that an aggravated felon lived at a
particular residence in Dallas. The officers received consent to enter and
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-10249
search the residence, and detained Madrid to determine his identity, alienage,
and deportability. After waiving his Miranda rights, Madrid acknowledged:
five firearms found in the residence belonged to him; and he was present in the
United States unlawfully, after having been previously deported.
He was charged with three criminal counts and moved the court to
suppress the evidence against him. After his motion was denied, Madrid
pleaded guilty to the firearm-possession charge, and the Government dropped
the remaining charges. The presentence investigation report (PSR)
recommended a base offense level of 33 based on, inter alia, the conclusion that
Madrid qualified as an armed career criminal, pursuant to 18 U.S.C. § 924(e)
and Sentencing Guideline § 4B1.4(b)(3)(B). Madrid objected to the PSR
recommendations, but the court overruled his objections and sentenced him to
180 months’ imprisonment.
Madrid first challenges the denial of his motion to suppress. He did not,
however, enter into a written conditional plea agreement, reserving his right
to challenge the suppression ruling. Moreover, the record contains no
suggestion that: Madrid intended to plead guilty conditionally; he expressed
an intent to appeal the suppression ruling; or the Government and the court
were not opposed to a conditional plea. Consequently, by pleading guilty
voluntarily and unconditionally, Madrid waived his right to challenge on
appeal any nonjurisdictional defects in the criminal proceedings that occurred
before the plea, including the denial of the suppression motion. See United
States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007); United States v. Wise, 179
F.3d 184, 186 (5th Cir. 1999); Fed. R. Crim. P. 11(a)(2).
Next, Madrid challenges his 180-month sentence. The sentence was
based on his prior convictions for burglary of a habitation under Texas Penal
Code § 30.02, which were deemed to constitute violent felonies under the
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No. 15-10249
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He maintains his
burglary convictions are not categorically violent felonies because Texas
defines burglary more broadly than the generic definition of burglary and the
Texas burglary statute defines a single, indivisible offense.
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
The Texas burglary statute, § 30.02(a), has three subsections, and our
court has held an offense under § 30.02(a)(1) qualifies as generic burglary.
United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014).
Moreover, § 30.02(a) is divisible and, therefore, amenable to the modified
categorical approach. Id. In United States v. Uribe, 838 F.3d 667, 669–71 (5th
Cir. 2016), cert. denied, 2017 WL 661924 (20 Mar. 2017), our court affirmed the
continuing viability of Conde-Casteneda after the Supreme Court’s decision in
Mathis v. United States, 136 S. Ct. 2243 (2016). Madrid’s contentions
regarding the divisibility of § 30.02(a) are, therefore, unavailing.
Additionally, Madrid contends, inter alia, his prior convictions for
burglary of a habitation and burglary of a building could not serve as
predicates for the application of the career-offender provision of Guideline
§ 4B1.2 because there was no finding of the use of either a deadly weapon, or
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physical force against the person of another. He also maintains: the record
contained no documents justifying the enhancement, pursuant to Shepherd v.
United States, 544 U.S. 13 (2005); and, under Alleyne v. United States, 133 S.
Ct. 2151 (2013), the sentencing court is prohibited from finding the facts that
trigger the application of Guideline § 4B1.2 and 28 U.S.C. § 994(h).
Madrid’s Alleyne contention is foreclosed by United States v. Tuma, 738
F.3d 681, 693 (5th Cir. 2013). His contention there were no Shepard
documents in support of the enhancement is belied by the record. The state-
conviction documents reflected that he pleaded guilty to intentionally and
knowingly entering a habitation or building without the effective consent of
the owner and with the intent to commit theft, a violation of § 30.02(a)(1). The
court, therefore, did not err in sentencing Madrid as an armed career criminal
under the ACCA.
AFFIRMED.
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