United States v. Raygoza-Cedillo , 260 F. App'x 745 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 2, 2008
No. 06-41786
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PEDRO LUIS RAYGOZA-CEDILLO
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.
PER CURIAM:*
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).
*
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should not be published and is not precedent except under the limited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. 06-41786
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, 127 S. Ct. 1586, 1599-1600 (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 (2000). This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (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), petition for
cert. filed, (Aug. 28, 2007) (No. 07-6202).
Accordingly, the judgment of the district court is AFFIRMED.
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