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

                                                                  FILED
                                                                  May 13, 2008
                                No. 07-40648
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

v.

JOSE LUIS MARIN-SOTO,

                                            Defendant-Appellant.


                 Appeal from the United States District Court
                      for the Southern District of Texas
                        USDC No. 5:06-CR-1425-ALL


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Jose Luis Marin-Soto appeals his guilty-plea conviction and sentence for
being present in the United States following deportation, in violation of 8 U.S.C.
§ 1326.    Marin-Soto argues that the district court erred in enhancing his
sentence pursuant to § 2L1.2(b)(1)(A)(ii) of the Federal Sentencing Guidelines,
based on the determination that his 1998 Texas conviction for burglary of a
habitation constitutes a crime of violence.     We review the district court’s



      *
      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should not be published and is not precedent except under the limited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. 07-40648

interpretation and application of the Guidelines de novo. United States v.
Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006).
      As Marin-Soto recognizes, this court has already held that a violation of
TEX. PENAL CODE ANN. § 30.02(a)(1), the statute of his previous conviction, is a
crime of violence for purposes of § 2L1.2. See United States v. Garcia-Mendez,
420 F.3d 454 (5th Cir. 2005). Nevertheless, Marin-Soto 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. In James, the Supreme Court noted
in dicta that because the Florida burglary statute at issue criminalizes the mere
unlawful entry onto the curtilage of a structure, rather than entry into the
structure itself, the statute contemplates conduct beyond "generic burglary." Id.
at 1599. This, however, was not the holding of James; the Court was confronted
not with the issue of whether burglary in Florida constitutes an enumerated
offense under a Guidelines enhancement provision, but rather whether that
offense constitutes a "violent felony" for purposes of the Armed Career Criminal
Act, 18 U.S.C. § 924(e). Id. at 1590; see also United States v. Gomez-Guerra, 485
F.3d 301, 303 (5th Cir.) ("The analysis in James . . . does not concern
enumerated offenses and pertains only to a residual provision in §
924(e)(2)(B)(ii) . . . ."), cert. denied, 128 S. Ct. 156 (2007) .
      Even applying the dicta in James, Marin-Soto's argument fails. Unlike
Florida's burglary statute, "habitation" under § 30.02(a)(1) does not include the
curtilage surrounding the habitable structure. See § 30.01(1); St. Julian v. State,
874 S.W.2d 669, 671 (Tex. Crim. App. 1994). As such, the Supreme Court's
guidance in James does not undermine our conclusion in Garcia-Mendez that a
violation of § 30.02(a)(1) constitutes "burglary of a dwelling" as that phrase is
generically used.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Marin-Soto
challenges the constitutionality of § 1326(b)’s treatment of prior felony and


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                                 No. 07-40648

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). Accordingly, the judgment of the district court is AFFIRMED.




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