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

                                                                  FILED
                                                                January 23, 2008
                                No. 07-40415
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JONATO SAENZ-RIVERA, also known as Jesus Ramirez Rivera

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 1:06-CR-1145-1


Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.

PER CURIAM:*
      Jonato Saenz-Rivera (Saenz) appeals the sentence imposed following his
guilty-plea conviction of being an alien found unlawfully in the United States
after deportation and after having been convicted of an aggravated felony. He
argues that the district court erred by imposing a 16-level increase under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior Texas state conviction for
burglary of a habitation. Saenz contends that the definition of “habitation”under

      *
      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should not be published and is not precedent except under the limited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. 07-40415

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, he
asserts that this precedent has been overruled by the Supreme Court’s decision
in James v. United States, 127 S. Ct. 1586, 1599-1600 (2007). This argument is
without merit as James did not involve an enumerated offense. See United
States v. Gomez-Guerra, 485 F.3d 301, 303 & n.1 (5th Cir. 2007). The district
court did not err in determining that Saenz’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 light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Saenz challenges
the constitutionality of 8 U.S.C. § 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 court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
      AFFIRMED.




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