Opinion
No. 07-40378 Summary Calendar.
March 26, 2008.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:06-CR-1028-1.
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit Judges.
Vincente Eliseo Aguirre-Cavazos appeals his conviction and sentence for being present in the United States following deportation in violation of 8 U.S.C. § 1326. Aguirre-Cavazos argues that the district court erred in applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on the determination that his 2005 Texas conviction for burglary of a habitation constitute a crime of violence. We review the district court's application of the Sentencing Guidelines de novo and its findings of fact for clear error. United States v. Villanueva, 408 F.3d 193, 202, 203 n. 9 (5th Cir. 2005); United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc).
Aguirre-Cavazos recognizes that this court has previously held that an offense committed under TEX. PENAL CODE § 30.02(a)(1), the statute of his convictions, is a crime of violence for purposes of § 2L1.2, but he argues that the Supreme Court's recent decision in James v. United States, ___ U.S. ___, 127 S.Ct. 1586, 1599-1600, 167 L.Ed.2d 532 (2007), overrules this circuit's precedent. In United States v. Gomez-Guerra, 485 F.3d 301, 303 n. 1 (5th Cir. 2007), this court noted that the analysis in James expressly does not concern enumerated offenses and pertains only to a residual provision in 18 U.S.C. § 924(e)(2)(B)(i), which § 2L1.2 does not contain. Consequently, James is not dispositive of this case. Moreover, because this court has repeatedly held that an offense under § 30.02(a)(1) constitutes a crime of violence for purposes of § 2L1.2, the district court did not err in applying the enhancement under § 2L1.2(b)(1)(A)(ii). See Gomez-Guerra, 485 F.3d at 304 n. 3; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005); see also United States v. Murillo-Lopez, 444 F.3d 337, 339, 344 (5th Cir. 2006).
In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Aguirre-Cavazos challenges the constitutionality of § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). Accordingly, the judgment of the district court is AFFIRMED.