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

                                                FILED
                                                                November 30, 2009
                                No. 08-51309
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

CARLOS ALEJANDRO OLIVO,

                                           Defendant-Appellant


                 Appeals from the United States District Court
                       for the Western District of Texas
                         USDC No. 5:05-CR-191-ALL




Before REAVLEY, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
      Carlos Alejandro Olivo appeals his enhanced sentence following a guilty
plea to being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(e)(1). Olivo argues that the district court plainly erred by
sentencing him as an armed career criminal because one of the convictions used
to enhance his sentence, a 1992 Texas conviction for burglary of a habitation, is
not a violent felony within the meaning of § 924(e)(1). He also argues that


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-51309

§ 922(g) is unconstitutional under United States v. Lopez, 514 U.S. 549 (1995);
however, he properly concedes that this issue is foreclosed by this circuit’s
precedent. See United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999).
      In response to Olivo’s challenge to the propriety of his enhanced sentence,
the Government has supplemented the record with a written stipulation of
testimony entered by Olivo in connection with his guilty plea to the 1992
burglary charge. See Shepard v. United States, 544 U.S. 13, 16 (2005); United
States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir.), cert. denied, 129 S. Ct.
353 (2008). Olivo’s stipulation makes it clear that his prior offense was a violent
felony under the Armed Career Criminal Act. See United States v. Constante,
544 F.3d 584, 585-87 (5th Cir. 2008); T EX. P ENAL C ODE A NN. § 30.02(a)(1), (3)
(Vernon 1989).
      AFFIRMED.




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