Opinion
No. 07-40995 Summary Calendar.
June 27, 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, No. 2:07-CR-324-1.
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
Armando Linares-Hernandez appeals his sentence for unlawful presence in the United States following removal. He asserts that the district court erred by imposing a 16-level enhancement based on his conviction of burglary of a habitation under § 30.02(a)(1) of the Texas Penal Code. Although he recognizes our precedent that this offense is a crime of violence for purposes of U.S.S.G. § 2L1.2, he argues that James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1599-1600, 167 L.Ed.2d 532 (2007), overrules it.
His argument is unpersuasive. In United States v. Gomez-Guerra, 485 F.3d 301, 303 n. 1 (5th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 156, 169 L.Ed.2d 106 (2007), we noted that James pertains only to a residual provision of 18 U.S.C. § 924(e)(2)(B)(i) that is absent from § 2L1.2. Consequently, James is not dispositive. Because we have 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. See Gomez-Guerra, 485 F.3d at 304 n. 3; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005).
The judgment is AFFIRMED.