                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                              August 16, 2007
                   FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk
                               No. 06-40572
                             Summary Calendar


UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

BUENAVENTURA JESUS GOMEZ

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                        USDC No. 1:05-CR-993-ALL


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
      Buenaventura Jesus Gomez appeals his guilty-plea conviction of, and
sentence for, violating 8 U.S.C. § 1326 by being found in the United States
without permission after deportation. Gomez argues that the district court erred
in finding that his prior Florida conviction for armed burglary under FLA. STAT.
ANN. § 810.02(2) was a “crime of violence” for purposes of imposing the 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Specifically, he contends that



      *
       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should not be published and is not precedent except under the limited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.
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the Florida definition of burglary is broader than the “‘generic contemporary
meaning’ of the term ‘burglary of a dwelling’” because it “expressly includes the
curtilage that the modern definition of ‘dwelling’ has abandoned.” He also
contends that the Florida armed burglary statute “does not have as an element
the use, attempted use, or threatened use of physical force against the person of
another.”
      To decide whether Gomez’s prior conviction qualifies as an enumerated
offense, we must determine the scope of the prior conviction, examining the
statute and certain adjudicative records if necessary. See United States v.
Murillo-Lopez, 444 F.3d 337, 339-40 (5th Cir. 2006). The Florida statute under
which Gomez was convicted and the criminal information to which he pleaded
guilty both include entry into a dwelling’s curtilage. This court has recently
determined “that the ordinary, contemporary, common meaning of burglary of
a dwelling does not extend to the grounds around the dwelling, but actually
requires unlawful or unprivileged entry into, or remaining in, the dwelling
itself.” United States v. Gomez-Guerra, 485 F.3d 301, 304 (5th Cir. 2007).
(internal quotation marks and citation omitted) (construing FLA. STAT. ANN. §
810.02(2), which is in relevant part identical to the statute at issue here). Thus,
Gomez was not convicted of the enumerated offense of “burglary of a dwelling.”1
Further, the Florida armed burglary statute, which required that Gomez merely
possess a dangerous weapon during the burglary, does not have “as an element


      1
        The information to which Gomez plead guilty stated that he “did
unlawfully enter or remain in a structure, to wit: a dwelling located at 8201
Northwest 7th Street....” The information to which Gomez-Guerra plead guilty
stated that he “did enter or remain in a structure, to-wit, a dwelling or the
curtilage thereof, the property of [the victim]....” Even though Gomez’s
information did not include the “curtilage” language contained in Gomez-
Guerra’s information, Gomez’s information does not eliminate the possibility
that he merely entered the curtilage because Florida defines “dwelling” itself to
include curtilage. See FLA. STAT. ANN. § 810.011(b); Gomez-Guerra, 485 F.3d at
303.

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the use, attempted use, or threatened use of physical force against the person of
another.” See U.S.S.G. § 2L1.2 cmt. 1(B)(iii) (emphasis added); United States
v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007).2 Thus, the district court erred
in applying the 16-level enhancement under § 2L1.2(b)(1)(A)(ii).
      Gomez also argues that, in light of Apprendi v. New Jersey, 530 U.S. 466
(2000), that the 70-month term of imprisonment imposed in his case exceeds the
statutory maximum sentence allowed for the § 1326(a) offense charged in his
indictment. He 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.
      Gomez’s constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although he contends that Almendarez-
Torres was incorrectly decided and that a majority of the Supreme Court would
overrule Almendarez-Torres in light of Apprendi, we have repeatedly rejected
such arguments on the basis that Almendarez-Torres remains binding. See
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Gomez properly


      2
        U.S.S.G. § 2L1.2(b)(1)(C) provides an eight-level increase for prior
commission of an “aggravated felony,” which after a few twists and turns is
defined to include a slightly different definition of “crime of violence” - that of 18
U.S.C. § 16, which includes crimes that have as an element the use, attempted
use, or threatened use of force against the person or property of another or
crimes involving substantial risk that such force against person or property may
be used during the commission of the offense. We do not decide whether this
enhancement might apply on remand. This is true even though United States
v. Diaz-Diaz, 327 F.3d 410, 414 (5th Cir. 2003), held that mere possession of a
gun did not involve a substantial risk of force in commission of the crime under
18 U.S.C. § 16(b), because the crime of conviction here was possession of a gun
during a burglary, not just possession of a gun by itself, and possession of a gun
during a burglary may include as an element the use, attempted use, or
threatened use of force against property under § 16(a) or may involve a
substantial risk of force against person or property during the commission of the
offense, even though possession of a gun by itself does not, under § 16(b). We
say nothing about that question.

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concedes that his argument is foreclosed in light of Almendarez-Torres and
circuit precedent, but he raises it here to preserve if for further review.
      Accordingly, we AFFIRM the conviction, VACATE the sentence, and
remand the case for resentencing.




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