United States v. Francisco Morales-Mota
704 F.3d 410
5th Cir.
2013
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UNITED STATES of America, Plaintiff-Appellee, v. Francisco MORALES-MOTA, Defendant-Appellant.

No. 12-40491

United States Court of Appeals, Fifth Circuit.

Jan. 9, 2013.

704 F.3d 410

Summary Calendar.

such assets are owned by the trust, not the decedent, and therefore are not part of the decedent‘s estate.12 In other words, because the assets in a living or inter vivos trust are not property of the estate at the time of the decedent‘s death, having been transferred to the trust years before, the trust is not in the custody of the probate court and as such the probate exception is inapplicable to disputes concerning administration of the trust. The record also indicates that there would be no probate of this Trust‘s assets upon the death of the surviving spouse.13 Finding no evidence that this Trust is subject to the ongoing probate proceedings, we conclude that the case falls outside the scope of the probate exception. The district court below erred in dismissing the case for lack of subject-matter jurisdiction.

IV.

For the reasons set forth above, we REVERSE the district court‘s dismissal of the case and REMAND for further proceedings. REVERSED AND REMANDED.

Jeffery Alan Babcock, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s, Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:

Francisco Morales-Mota pleaded guilty, without the benefit of a plea agreement, of being unlawfully present in the United States after having been deported. His offense level was enhanced by sixteen under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a conviction of burglary of a habitation with intent to commit theft, which was determined to be a crime of violence (“COV“). Morales-Mota ultimately received a forty-six-month sentence, which was at the bottom of the advisory guideline range.

Morales-Mota challenges the enhancement, contending that Texas‘s burglary-of-a-habitation offense falls outside the generic, contemporary definition of burglary and thus does not constitute a COV. Because Morales-Mota did not raise that objection in the district court, our review is for plain error. See

. To succeed under that standard, Morales-Mota must show an error that is clear or obvious and that affects his substantial rights, but even so, we generally will exercise our discretion to correct the error only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
(internal quotation marks and citation omitted).

Section 2L1.2(b)(1)(A)(ii) provides for an increase of sixteen to a base offense level if the defendant was previously deported after being convicted of a COV. Among the enumerated COVs listed in the guideline commentary is burglary of a dwelling. § 2L1.2, comment. (n. 1(B)(iii)). To determine whether a particular conviction is for an enumerated COV, we compare the generic, contemporary definition of the enumerated crime with the conduct described in the statute of conviction.

. If the statute‘s definition of an offense is broader than the generic definition, that offense cannot serve as a predicate for the adjustment.
.

The generic, contemporary definition of burglary of a dwelling is the unlawful or unprivileged entry into, or remaining in, a building, structure, tent, or vessel used for human habitation, with intent to commit a crime.1 The statute of conviction—TEX. PENAL CODE § 30.02(a)(1)—makes it a crime to enter into a habitation or building not open to the public, without consent of the owner, intending to commit a felony, theft, or assault. Morales-Mota‘s argument hinges on the definition of “owner,” which under Texas law includes a person who has “a greater right to possession of the property than the actor.” TEX. PENAL CODE § 1.07(35)(A). According to Morales-Mota, because a person can be convicted of burglary of a habitation even if he has a legitimate right to possess the property, the Texas statute is broader than the generic definition of burglary of a dwelling.

In

, we held that burglary of a habitation under § 30.02(a)(1) constitutes burglary of a dwelling and supports an enhancement under § 2L1.2, but we did not address Morales-Mota‘s contention. Recently we rejected a materially indistinguishable argument in
(per curiam) (unpublished), deciding that Texas‘s definition of “owner” did not bring its burglary-of-a-habitation statute outside the generic definition of burglary for purposes of the Armed Career Criminal Act (“ACCA“). Id.

In

, we relied on the Supreme Court‘s observation that Congress listed burglary as an enumerated offense in the ACCA because of its “inherent potential for harm to persons.”
at 142, 2012 WL 3488717 at *3 (quoting
). “Merely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may result when a person enters a habitation with intent to commit theft.”
at 144, 2012 WL 3488717 at *4. Though
is unpublished and thus not precedential, it is instructive, its reasoning persuasive. See 5TH CIR. R. 47.5.4;
. Accordingly, the enhancement in this case was proper.2

The judgment of sentence is AFFIRMED.

Notes

2
See
(employing the same analysis to determine whether an offense is a violent felony for purposes of the ACCA and whether an offense is a COV for purposes of the sentencing guidelines).
12
See 3 TEX. PRAC. GUIDE WILLS, TRUSTS, AND EST. PLAN. § 10:83 (“Any property held in a revocable living trust is not considered a probate asset....“); 2 EST. TAX & PERS. FIN. PLAN. § 19:15 (“Avoidance of probate perhaps is the most publicized advantage of the revocable living trust.“); 18 EST. PLAN. 98 (“Assets in a living trust are not subject to probate administration....“).
13
Any assets “poured over” from the decedents’ estates into the Trust would have to go through probate, but that does not change the fact that the Trust property over which the Defendants have been acting as Trustees would not be subject to probate, having been transferred to the Trust prior to the parents’ deaths.
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