USA v. Pacheco-Salazar, No. 06-40406 (5th Cir. 2007)
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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. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-858 -------------------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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -2prior 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 No. 06-40406 -3expressly 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.
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