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United States v. Juan Linares-Briceno
687 F. App'x 385
5th Cir.
2017
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Case Information

*1 Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM: [*]

Juan Antonio Linares-Briceno appeals the revocation of his supervised release and his guilty plea conviction for illegal reentry. He challenges the district court’s application of the crime-of-violence enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014) based on his prior Texas conviction for burglary of a *2 Case: 16-50392 Document: 00513966209 Page: 2 Date Filed: 04/25/2017

No. 16-50392

c/w No. 16-50402 habitation. See T EX . P ENAL C ODE A NN . § 30.02. By failing to raise any specific error in the revocation or revocation sentence, he has abandoned any challenge to the revocation proceeding. See United States v. Solano-Hernandez , 847 F.3d 170, 174 n.2 (5th Cir. 2017). He argues that § 30.02(a) is not divisible and, in the alternative, that the Government failed to show that he was convicted of a crime of violence because the judgment references § 30.01(a)(1) while the indictment tracks the language of § 30.02(a)(3), which this court has held is not a crime of violence.

Section 30.02(a) of the Texas Penal Code is divisible, and a violation of § 30.02(a)(1) constitutes generic burglary of a dwelling. United States v. Uribe , 838 F.3d 667, 670-71 (5th Cir. 2016), cert. denied , 2017 WL 661924 (Mar. 20, 2017) (No. 16-7969); see § 2L1.2(b)(1)(A)(ii) & comment. (n.1(B)(iii)) (2015). Linares-Briceno has not established that a conflict renders the judgment unreliable for purposes of determining which subsection of § 30.02(a) formed the basis for the conviction. See Solano-Hernandez , 847 F.3d at 177. Furthermore, his argument that the indictment created a conflict assumes that the indictment may be used to narrow the statute of conviction. The judgment indicates, however, that Linares-Briceno was not convicted of burglary as charged in the indictment. See United States v. Bonilla , 524 F.3d 647, 652 (5th Cir. 2008). In light of the foregoing, he has failed to show that the district court erred, plainly or otherwise, by applying the crime-of-violence enhancement. See Uribe , 838 F.3d at 671.

The judgments of the district court are AFFIRMED.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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.

Case Details

Case Name: United States v. Juan Linares-Briceno
Court Name: Court of Appeals for the Fifth Circuit
Date Published: Apr 25, 2017
Citation: 687 F. App'x 385
Docket Number: 16-50392 c/w 16-50402 Summary Calendar
Court Abbreviation: 5th Cir.
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