Opinion
No. 06-41786. Summary Calendar.
January 2, 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. 1:06-CR-775-ALL.
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
Pedro Luis Raygoza-Cedillo (Raygoza) appeals his conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. §§ 1326(a) and (b). Raygoza 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. We review the district court's application of the Guidelines de novo. See United, States v. Velasco, 465 F.3d 633, 637 (5th Cir. 2006).
Raygoza 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 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).
Raygoza also maintains the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 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), which held 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. 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.