Case Information
*1 Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: [*]
Tomas Galvan-Fuentes appeals following his guilty plea conviction and sentence for illegal reentry after deportation. He contends that the district court committed reversible plain error by imposing an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014) based on his prior Texas conviction for burglary of a habitation. Relying on Mathis v. United States , 136 S. Ct. 2243 (2016), Galvan-Fuentes argues that the Texas burglary statute is broader than *2 Case: 16-40516 Document: 00514011974 Page: 2 Date Filed: 05/30/2017
No. 16-40516
the enumerated offense of burglary of a dwelling and that the Texas burglary statute is not divisible for purposes of applying the modified categorical approach. Galvan-Fuentes concedes, however, that the issue he raises on appeal is foreclosed by this court’s decision in United States v. Uribe , 838 F.3d 667 (5th Cir. 2016), cert. denied , 2017 WL 661924 (Mar. 20, 2017) (No. 16- 7969).
The Government agrees that Galvan-Fuentes’s Mathis -based challenge is foreclosed by Uribe , and it has filed an opposed motion for summary affirmance. Summary affirmance is proper where, among other things, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969).
In a pre- Mathis decision, we determined that the Texas burglary statute, T EX . P ENAL C ODE A NN . § 30.02(a) (2009), is a divisible statute that is amenable to application of the modified categorical approach. See United States v. Conde- Castaneda , 753 F.3d 172, 176 (5th Cir. 2014). Galvan-Fuentes’s argument, in reliance on Mathis , that § 30.02(a) is not divisible and, thus, cannot support application of the modified categorical approach, was squarely rejected in Uribe , wherein we determined that the provisions of the Texas burglary statute set forth elements, rather than means, and that Conde-Castaneda had not been disturbed by Mathis . See Uribe , 838 F.3d at 670-71.
In view of the foregoing, the Government’s motion for summary affirmance is GRANTED, and the district court’s judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.
2
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.