USA v. Linares-Hernandez, No. 07-40995 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-40995 Summary Calendar June 27, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARMANDO LINARES-HERNANDEZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas No. 2:07-CR-324-1 Before SMITH, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM:* Armando Linares-Hernandez appeals his sentence for unlawful presence in the United States following removal. He asserts that the district court erred by imposing a 16-level enhancement based on his conviction of burglary of a hab* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40995 itation under § 30.02(a)(1) of the Texas Penal Code. Although he recognizes our precedent that this offense is a crime of violence for purposes of U.S.S.G. § 2L1.2, he argues that James v. United States, 127 S. Ct. 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 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. 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 judgment is AFFIRMED. 2

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