Opinion
No. 07-40076 Summary Calendar.
January 3, 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 Defendants-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:06-CR-136-ALL.
Before KING, DAVIS and CLEMENT, Circuit Judges.
Hector Rodriguez appeals his conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. Rodriguez 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 1986 and 2001 Texas convictions for burglary of a habitation constitute crimes 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).
Rodriguez 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), over-rules this circuit's precedent. His argument is unpersuasive.
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), Rodriguez 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), cert. denied ___ U.S. ___, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). Accordingly, the judgment of the district court is AFFIRMED.