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

                                                                  FILED
                                                                March 12, 2008
                                No. 07-40612
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

DANIEL BOLANOS-MORALES, also known as Alberto Vazquez-Torres

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 1:07-CR-21-ALL


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Daniel Bolanos-Morales (Bolanos) appeals his conviction and sentence for
illegal reentry following deportation in violation of 8 U.S.C. § 1326(a). Bolanos
argues that the district court erred in applying a 16-level enhancement pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on the determination that his 2001 Texas
conviction for burglary of a habitation constituted a conviction for a crime of
violence. We review the district court’s application of the Sentencing Guidelines



      *
      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should not be published and is not precedent except under the limited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. 07-40612

de novo and its findings of fact for clear error. United States v. Villanueva, 408
F.3d 193, 202, 203 n.9 (5th Cir. 2005); United States v. Vargas-Duran, 356 F.3d
598, 602 (5th Cir. 2004)(en banc).
      Bolanos recognizes that this court has previously held that an offense
committed under TEX. PENAL CODE § 30.02(a)(1), the statute of his conviction, is
a crime of violence for purposes of § 2L1.2, but he 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. His argument is unpersuasive.
      In United States v. Gomez-Guerra, 485 F.3d 301, 303 n.1 (5th Cir. 2007),
this court held that the analysis in James expressly does not concern
enumerated offenses and pertains only to a residual provision in 18 U.S.C.
§ 924(e)(2)(B)(I), which § 2L1.2 does not contain. Consequently, James is not
dispositive of this case. Because this court has repeatedly 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 under § 2L1.2(b)(1)(A)(ii).
See United States v. Murillo-Lopez, 444 F.3d 337, 339, 444 (5th Cir. 2006);
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005).
      Bolonas also maintains the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held 8
U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied,
2008 WL 59441 (Jan. 7, 2008) (No. 07-6202). Accordingly, the judgment of the
district court is AFFIRMED.




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