          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                 April 24, 2008
                                No. 07-40554
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

SALVADOR BRISENO-BENAVIDEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:07-CR-68-1


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Salvador Briseno-Benavidez pleaded guilty to illegal reentry after
deportation, in violation of 8 U.S.C. § 1326(a) and (b). He appeals both his
conviction and sentence.
      Briseno maintains the district court erred by imposing a 16-level, crime-of-
violence increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior Texas
conviction for burglary of a habitation. Although post-Booker, the Sentencing



      *
      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should not be published and is not precedent except under the limited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. 07-40554

Guidelines are advisory only, and an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 128 S. Ct. 586, 596 (2007). In that
respect, its application of the guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir.
2005).
      Briseno asserts the definition of habitation under Texas law is broader
than the generic, contemporary meaning of dwelling as used in the enumerated
offense of burglary of a dwelling in the Sentencing Guidelines. Although he
acknowledges this court’s precedent to the contrary, Briseno asserts it has been
overruled by the Supreme Court’s decision in James v. United States, 127 S. Ct.
1586, 1599-1600 (2007). This contention is without merit; James did not involve
an enumerated offense. See United States v. Gomez-Guerra, 485 F.3d 301, 303
& n.1 (5th Cir. 2007). As a result, the district court did not err in determining
that Briseno’s prior conviction was a crime of violence. See United States v.
Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.), cert. denied, 127 S. Ct. 265 (2006).
      In the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Briseno
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors, rather than elements of the
offense that must be found by a jury.           This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      AFFIRMED.




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