USA v. Marco Ovalle-Castillo, No. 12-40670 (5th Cir. 2013)

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Case: 12-40670 Document: 00512241376 Page: 1 Date Filed: 05/14/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-40670 Summary Calendar May 14, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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