USA v. Gamez-Silva, No. 08-40042 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 08-40042 Conference Calendar August 20, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ROLANDO GAMEZ-SILVA Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:07-CR-940-ALL Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Rolando Gamez-Silva appeals from his sentence for being an alien unlawfully found in the United States after deportation following a felony conviction. He asserts that the district court erred by imposing a 16-level enhancement based upon his prior Texas conviction for burglary of a habitation. Although he recognizes our precedent that this offense is a crime of violence for U.S.S.G. § 2L1.2 purposes, he argues that James v. United States, 127 S. Ct. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40042 1586, 1599-1600 (2007), overrules it. His argument is unpersuasive. In United States v. Gomez-Guerra, 485 F.3d 301, 303 n.1 (5th Cir.), cert. denied, 128 S. Ct. 156 (2007), we noted that James pertains only to a residual provision of 18 U.S.C. § 924(e)(2)(B)(i) that is absent from § 2L1.2. Consequently, James is not dispositive. Because we have held that the Texas offense of burglary of a habitation constitutes a crime of violence for purposes of § 2L1.2, the district court did not err in applying the enhancement. See Gomez-Guerra, 485 F.3d at 304 & n.3; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005). The Government s motions for summary affirmance and to waive the requirement to file an appellee s brief are GRANTED, the Government s motion for an extension of time to file an appellee s brief is DENIED, and the judgment of the district court is AFFIRMED. 2

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