Case: 11-50864       Document: 00511918955         Page: 1     Date Filed: 07/12/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 12, 2012
                                     No. 11-50864
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

SELVIN ADAN RODRIGUEZ-LOPEZ,
Also Known as Jose Martinez, Also Known as Jose Luis Maldonado,
Also Known as Alexis Rodriguez, Also Known as Alexis Gonzales,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CR-412-1




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50864   Document: 00511918955      Page: 2   Date Filed: 07/12/2012

                                  No. 11-50864

      Selvin Rodriguez-Lopez appeals his 82-month sentence for illegal reentry
following deportation. The presentence report calculated the advisory sentenc-
ing guideline range based on the treatment of Rodriguez-Lopez’s 2006 Florida
conviction for burglary of a dwelling, under FLA. STAT. ANN. § 810.02, as a crime
of violence (“COV”) for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii)’s 16-level
enhancement. The enhancement yielded a range of 77-96 months. Rodriguez-
Lopez objected to the determination that his burglary offense was a COV.
      The district court overruled the objection and imposed a within-guidelines
sentence of 82 months in prison and three years of supervised release. The court
then stated that, even if the enhancement was not applicable, it would impose
the same sentence. The court recognized that the advisory range without the
enhancement was 33-41 months, and it imposed an alternative upward-
departure guideline sentence of 82 months.
      Rodriguez contends that the court erred in treating the Florida conviction
as a COV. A conviction under § 810.02 is not categorically the equivalent of the
enumerated offense of burglary of a dwelling, because the inclusion of curtilage
in the Florida definition of a dwelling renders the statute outside the “ordinary,
contemporary, common meaning of burglary of a dwelling.” United States v.
Gomez-Guerra, 

, 303 & n.2, 304 (5th Cir. 2007). Accordingly, to
determine whether a conviction under § 810.02 qualifies as an enumerated COV
under § 2L1.2, a court may consider appropriate adjudicative records. Id.;
United States v. Murillo-Lopez, 

, 340 (5th Cir. 2006).
      The documents relating to the conviction do not aid in narrowing the defi-
nition of dwelling to exclude the curtilage. Thus, under Gomez-Guerra, 485 F.3d
at 303-04, that conviction does not fall within the generic, contemporary mean-
ing of the enumerated “burglary of a dwelling” COV under § 2L1.2. Gomez-
Guerra, 485 F.3d at 303-04. The district court erred when it adjusted Rodriguez-
Lopez’s offense level for having a conviction of a COV. See id.
      The error, however, does not require resentencing. Rodriguez’s alternative

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   Case: 11-50864    Document: 00511918955      Page: 3   Date Filed: 07/12/2012

                                  No. 11-50864

upward-departure sentence, which was not the result of a misapplication of the
guidelines, supplies the court with an independent basis for affirming. See
United States v. Tzep-Mejia, 

, 527 (5th Cir. 2006); United States v.
Ruiz-Arriaga, 

, 282 (5th Cir. 2009).
      This court reviews criminal sentences for reasonableness in light of the
factors in 18 U.S.C. § 3553(a). See Gall v. United States, 

, 51 (2007);
United States v. Mares, 

, 519-20 (5th Cir. 2005). Reasonableness
review, in the context of a departure, requires this court to evaluate both “the
district court’s decision to depart upwardly and the extent of that departure for
abuse of discretion.” United States v. Zuniga-Peralta, 

, 347 (5th Cir.
2006) (internal quotation marks and citation omitted). An upward departure is
not an abuse of discretion if the reasons for it advance the objectives of § 3553-
(a)(2) and are justified by the particular facts. Id.
      Given the extent and severity of Rodriguez-Lopez’s criminal history, the
district court did not abuse its discretion when it upwardly departed under
U.S.S.G. § 4A1.3. The court provided permissible and appropriate reasons for
the sentence; in particular, it noted that Rodriguez-Lopez had been convicted of
numerous offenses by the age of thirty and that the court had never seen a rap
sheet as long as his. The court also stated that society needed to be protected
from Rodriguez-Lopez.
      The reasons for departure advance the objectives of § 3553(a)(2) and are
justified by the facts. See Zuniga-Peralta, 

. Additionally, the sen-
tence is within the range of departures upheld by this court. See, e.g., United
States v. Jones, 

, 433, 442 (5th Cir. 2006); United States v. Smith,

, 492 (5th Cir. 2005).
      AFFIRMED.




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