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

                                                                 FILED
                                                                 April 3, 2008
                               No. 07-40762
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

VICTOR PEREZ CASTRO, also known as Manuel Castro Guzman

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 1:07-CR-180-1


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Victor Perez Castro (Perez) appeals his conviction and 48-month sentence
for violating 8 U.S.C. § 1326(b). He asserts that the district court erred in
imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) based upon a
determination that his prior burglary offense was a crime of violence. Perez was
convicted under Texas Penal Code § 30.02(a)(3), which does not require the
perpetrator to have the intent to commit a crime upon entering the premises.



      *
      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should not be published and is not precedent except under the limited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. 07-40762

See TEX. PENAL CODE § 30.02(a)(3). Without such a requirement, the offense
does not meet the generic definition of “burglary of a dwelling” as necessary to
be a crime of violence under § 2L1.2. United States v. Herrera-Montes, 490 F.3d
390, 391-92 (5th Cir. 2007). In light of this error, we must vacate Perez’s
sentence and remand for resentencing. See United States v. Villegas, 404 F.3d
355, 362-65 (5th Cir. 2005).
      Perez also asserts that his sentence is unreasonable because the district
court failed to address his arguments for a downward variance and because our
post-Booker1 rulings have reinstated the mandatory guidelines regime. Because
we have determined that the case should be remanded for resentencing, we need
not consider Perez’s arguments about the reasonableness of his sentence.
      Finally, Perez 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 (1995).
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied,
128 S. Ct. 872 (2008).
    AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR
RESENTENCING.




      1
          United States v. Booker, 543 U.S. 220 (2005).

                                         2
