Opinion
No. 07-40160, Summary Calendar.
October 18, 2007.
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. 1:06-CR-1007-1.
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
Gustavo Castillo-Medina appeals his conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. §§ 1326(a) and (b). Castillo-Medina 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 1992 Texas conviction for burglary of a habitation constitutes a crime of violence. Because Castillo-Medina did not object to the imposition of the enhancement in the district court, review is for plain error. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005).
Castillo-Medina recognizes that this court has previously held that an offense committed under TEX. PENAL CODE § 30.02(a)(1), the statute of his conviction, is a crime of violence for purposes of § 2L1.2, but 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. His argument is unpersuasive.
In United States v. Gomez-Guerra, 485 F.3d 301, 304 n. 3 (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(2)(B)(ii), 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 plainly err in applying the enhancement under § 2L1.2(b)(1)(A)(ii). See Gomez-Guerra, 485 F.3d at 304; 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), Castillo-Medina 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 court has held that this issue is "fully foreclosed from further debate." United, States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
Accordingly, the judgment of the district court is AFFIRMED.