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

                                                                   FILED
                                                                 February 14, 2008
                                No. 07-40503
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JORGE LUIS MIRELES-FLORES

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:07-CR-81-1


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Jorge Luis Mireles-Flores appeals his conviction and sentence for being
present in the United States following deportation in violation of 8 U.S.C.
§ 1326. Mireles-Flores 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 2006 Texas conviction for burglary of a habitation
constitutes a crime of violence. We review the district court’s application of the



      *
      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should not be published and is not precedent except under the limited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. 07-40503

Sentencing Guidelines 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).
      Mireles-Flores 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. In United States v. Gomez-
Guerra, 485 F.3d 301, 303 n.1 (5th Cir.), cert. denied, 128 S.Ct. 156 (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 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. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert. denied. 126 S.Ct.
1398 (2006).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Mireles-Flores
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 (1998). 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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