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

                                                                  FILED
                                                                January 3, 2008
                                No. 07-40076
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

HECTOR RODRIGUEZ, also known as Hector Castillo-Rodriguez

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 7:06-CR-136-ALL


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
      Hector Rodriguez appeals his conviction and sentence for illegal reentry
following deportation in violation of 8 U.S.C. § 1326. Rodriguez 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 1986 and 2001 Texas
convictions for burglary of a habitation constitute crimes of violence. We review
the district court’s application of the Sentencing Guidelines de novo and its



      *
      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should not be published and is not precedent except under the limited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. 07-40076

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).
      Rodriguez recognizes that this court has previously held that an offense
committed under TEX. PENAL CODE § 30.02(a)(1), the statute of his convictions,
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 noted 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. Moreover, 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 Gomez-Guerra, 485 F.3d at 304 & n.3; United States v.
Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2007); see also United States v.
Murillo-Lopez, 444 F.3d 337, 339, 444 (5th Cir. 2006).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Rodriguez
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 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).
Accordingly, the judgment of the district court is AFFIRMED.




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