USA v. Raygoza-Cedillo, No. 06-41786 (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. 06-41786 Summary Calendar January 2, 2008 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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