United States v. Pacheco-Salazar , 242 F. App'x 974 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 6, 2007
Charles R. Fulbruge III
Clerk
No. 06-40406
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN PACHECO-SALAZAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-858
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Before REAVELY, DENNIS, and PRADO, Circuit Judges:
PER CURIAM:*
Pacheco-Salazar appeals the 90-month sentence that resulted
from his guilty-plea conviction for being found in the United
States without permission after deportation in violation of
8 U.S.C. § 1326.
Pacheco-Salazar argues, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 90-month term of imprisonment
imposed in his case exceeds the statutory maximum sentence
allowed for the § 1326(a) offense charged in his indictment. He
challenges the constitutionality of § 1326(b)’s treatment of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-40406
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prior felony and aggravated felony convictions as sentencing
factors rather than elements of the offense that must be found by
a jury.
Pacheco-Salazar’S constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Pacheco-
Salazar properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises
it here to preserve it for further review.
Pacheco-Salazar also argues that the 16-level enhancement
was improper because his 1993 burglary conviction under Florida
Statute § 810.02 was not a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). This court reviews the sentencing court’s
interpretation and application of the Guidelines de novo because
Pacheco-Salazar raised the issue in the district court. See
United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.
2004)(en banc), cert. denied, 543 U.S. 1076 (2005).
The charging document, on which the enhancement was based,
expressly charged Pacheco-Salazar with entering or remaining “in
a certain dwelling,” and the judgment for the Florida conviction
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expressly refers to a “dwelling.” Because the definition of
dwelling in § 810.011(2) includes “the curtilage thereof,”
Pacheco-Salazar’s offense may have occurred on the “curtilage” of
the property, which would not constitute a “burglary of a
dwelling” under § 2L1.2. See United States v. Gomez-Guerra, 485
F.3d 301, 303-04 (5th Cir. 2007). Accordingly, Pacheco-Salazar
was not convicted of the enumerated offense of “burglary of a
dwelling.” See id. Because the district court improperly
calculated the sentencing guideline range, we VACATE and REMAND
for resentencing.
VACATED AND REMANDED FOR RESENTENCING.