Opinion
No. 07-40503 Summary Calendar.
February 14, 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. 7:07-CR-81-1.
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
Jorge Luis Mireles-Flores appeals his conviction and sentence for being present in the United States following deportation in violation of 8 U.S.C. § 1326. Mireles-Flores 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 2006 Texas conviction for burglary of a habitation constitutes 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-Duron, 356 F.3d 598, 602 (5th Cir. 2004) (en banc).
Mireles-Flores 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 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.), cert. denied, ___ U.S. ___, 128 S.Ct. 156, 169 L.Ed.2d 106 (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 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 United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 546 U.S. 1199, 126 S.Ct. 1398, 164 L.Ed.2d 100 (2006).
In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Mireles-Flores 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.