     Case: 12-10133   Document: 00512109016    Page: 1   Date Filed: 01/10/2013




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

                                                                 FILED
                                                               January 10, 2013
                               No. 12-10133
                             Summary Calendar                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.



ROLANDO RAMIREZ, also known as Roland Ramirez,

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:11-CR-118-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
      Rolando Ramirez is appealing the 180-month sentence imposed following
his conviction for possession of a firearm subsequent to a felony conviction.
      Ramirez was sentenced under the provisions of the Armed Career
Criminal Act (ACCA) because he had four prior convictions for burglary of a
habitation pursuant to TEX. PENAL CODE § 30.02(a)(3), which the district court


      *
      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should not be published and is not precedent except under the limited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.
    Case: 12-10133     Document: 00512109016     Page: 2   Date Filed: 01/10/2013

                                  No. 12-10133

determined were violent felonies under the ACCA’s residual clause. See 18
U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(a).
      Ramirez’s sole argument on appeal is that the issue of whether his prior
convictions were violent felonies under the ACCA was foreclosed by United
States v. Constante, 544 F.3d 584 (5th Cir. 2008). In Constante, we did not
address whether burglary under § 30.02(a)(3) was a violent felony under the
ACCA’s residual clause. Thus, the issue was not foreclosed by Constante. See,
e.g., Matter of Swift, 129 F.3d 792, 796 n.18 (5th Cir. 1997) (stating that we are
not bound by a previous decision if that decision did not consider an issue raised
in the subsequent case).
      In light of the foregoing, Ramirez’s sentence is AFFIRMED.




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