United States v. Hernandez-Beltran , 168 F. App'x 640 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40708
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE EDUARDO HERNANDEZ-BELTRAN,
also known as Francisco Javier Beltran,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1060-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Eduardo Hernandez-Beltran (Hernandez) appeals his
guilty-plea conviction and sentence for being illegally present
in the United States following removal. Hernandez argues that
the district court erred by finding that his prior Texas felony
conviction for burglary of a habitation was a crime of violence
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). In United States v. Garcia-
Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), petition for cert.
filed (Dec. 15, 2005)(No. 05-8542), this court held that a prior
*
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this opinion should not be published and is not precedent except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. 05-40708
-2-
Texas conviction for burglary of a habitation was a prior
conviction for a crime of violence under § 2L1.2(b)(1)(A)(ii)
because it was equivalent to the enumerated offense of burglary
of a dwelling. Hernandez asserts that Garcia-Mendez is
inapplicable to the present case because the issue in that case
was reviewed for plain error and because this court did not apply
the categorical analysis mandated by Taylor v. United States, 495
U.S. 575 (1990). While the review of this issue in Garcia-Mendez
was for plain error, this court clearly held that a Texas
conviction for burglary of a habitation was a conviction for a
crime of violence under § 2L1.2(b)(1)(A)(ii). See Garcia-Mendez,
420 F.3d at 456-57. Hernandez’s argument that this court did not
properly apply the categorical analysis of Taylor in Garcia-
Mendez is nothing more than an argument that Garcia-Mendez was
incorrectly decided, and is unavailing. See Burge v. Parish of
St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (applying prior
panel rule).
Hernandez’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Hernandez contends that Almendarez-Torres
was incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), 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.),
No. 05-40708
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cert. denied, 126 S. Ct. 298 (2005). Hernandez 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.
AFFIRMED.