                  UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                          __________________

                             No. 94-10393
                           Summary Calendar
                          __________________



     UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                                  versus

     JORGE AYALA GUADARDO,

                                           Defendant-Appellant.

         ______________________________________________

      Appeal from the United States District Court for the
                   Northern District of Texas
         ______________________________________________

                          (December 2, 1994)


Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

     Defendant-appellant Jorge Ayala Guadardo (Ayala Guadardo)

appeals his sentence imposed by the district court.         We affirm.

                    Facts and Proceedings Below

     Ayala   Guadardo   pleaded   guilty   to   a   one-count   indictment

charging him with illegal re-entry into the United States after

deportation subsequent to a felony conviction in violation of 8

U.S.C. § 1326(b)(1).    The factual resume signed by Ayala Guadardo

at the time of his guilty plea recited:

          "On July 6, 1990, the defendant, Jorge Ayala
     Guadardo, was convicted in the 291st District Court of
     Dallas County, Texas for the offense of Burglary of a
     Habitation. He received a 10 year sentence.
          On May 20, 1991, the defendant was released on
     parole. He was deported to El Salvador on June 19, 1991.
          On December 28, 1993, the defendant was found in the
     United States at Dallas County, Texas.       He had not
     obtained the consent of the Attorney General of the
     United States to reapply for admission into the United
     States."

     The Presentence Report (PSR) recited that on July 6, 1990,

Ayala Guadardo "was convicted of the offense of Burglary of a

Habitation, in Harris County, and was sentenced to 10 years in

TDC," and accordingly increased his offense level by sixteen levels

pursuant to U.S.S.G. § 2L1.2(b)(2) because he had been deported

after a conviction of an aggravated felony.         Ayala Guadardo filed

an objection to the PSR contending that his 1990 Texas conviction

for burglary of a habitation was not an aggravated felony and that

therefore his base offense level should have been increased by only

four levels.      At the sentencing proceeding, the district court

overruled Ayala Guadardo's objection and adopted the PSR.              Ayala

Guadardo   then   requested   that   the   court   look   into   the   facts

underlying his burglary conviction, which, he argued, should not

have been classified as a crime of violence in the PSR.                While

raising these arguments, Ayala Guadardo has never denied that he

was convicted of burglary of a habitation under the Texas Penal

Code.1


1
     Although we do not have the record of Ayala Guadardo's
burglary conviction before us, we find ample evidence to support
the PSR's statement that he was convicted for burglary of a
Habitation. In addition to the statement in the signed factual
resume reciting his 1990 conviction for "Burglary of a
Habitation," which he has never challenged or sought to withdraw,
Ayala Guadardo's attorney stated at sentencing that his client
had been convicted of burglary of a habitation and sought to

                                     2
     The district court refused to explore the facts surrounding

Ayala Guadardo's burglary conviction and sentenced him to a sixty-

month prison    term,    three   years   of   supervised    release,   and a

mandatory special assessment of fifty dollars.              In this appeal,

Ayala Guadardo argues that the district court erred in concluding

that burglary of a habitation constitutes an aggravated felony

under U.S.S.G. § 2L1.2(b)(2) and in refusing to consider in that

respect the facts underlying his conviction for burglary of a

habitation.    We affirm.

                                 Discussion

     We will uphold a sentence imposed under the guidelines unless

it is imposed in violation of law, is the result of an incorrect

application of the guidelines, or is an unreasonable departure from

the applicable guideline range. 18 U.S.C. § 3742(e); United States

v. Anderson, 5 F.3d 795, 798 (5th Cir. 1993), cert. denied, 114

S.Ct. 1118 (1994).      Application of the guidelines is a question of

law subject to de novo review.       United States v. Howard, 991 F.2d

195, 199 (5th Cir.), cert. denied, 114 S.Ct. 395 (1993).          We review

the factual findings of the district court for clear error.             Id.

     U.S.S.G. § 2L1.2 provides for a sixteen-point increase in the

base offense level "[i]f the defendant previously was deported

after a conviction for an aggravated felony."         Id.    The definition

of aggravated felony in Application Note 7 of the Commentary to

section 2L1.1 includes "any crime of violence (as defined under 18


explain the facts surrounding the conviction. Finally, Ayala
Guadardo's brief filed with this Court again confirmed that
"Appellant was convicted of burglary of a habitation and received
10 years confinement in T.D.C."

                                     3
U.S.C. § 16, not including a purely political offense) for which

the term of imprisonment imposed (regardless of any suspension of

such imprisonment) is at least five years."                        8 U.S.C. § 16

provides:

     "The term `crime of violence' meansSQ

           (a) an offense that has as an element the use,
     attempted use, or threatened use of physical force
     against the person or property of another, or
           (b) any other offense that is a felony and that, by
     its nature, involves a substantial risk that physical
     force against the person or property of another may be
     used in the course of committing the offense." 18 U.S.C.
     § 16.

     Ayala Guadardo argues that his conviction for burglary of a

habitation under section 30.02 of the Texas Penal Code does not

constitute    a   crime   of    violence       under   U.S.S.G.    §    2L1.2.      We

disagree. We have held that burglary of a habitation under section

30.02 of the Texas Penal Code constitutes a crime of violence under

18 U.S.C. § 16.        United States v. Cruz, 882 F.2d 922 (5th Cir.

1989); United States v. Flores, 875 F.2d 1110 (5th Cir. 1989).

Cruz and     Flores    both    involved       the   application    of   the   career

offender    provisions    of    U.S.S.G.       §     4B1.1.2      At   the   time   of

sentencing in Cruz and Flores, U.S.S.G. § 4B1.2 stated that the

term crime of violence "as used in this provision is defined under




2
     U.S.S.G. §       4B1.1 reads:

     "A defendant is a career offender if (1) the defendant
     was at least eighteen years old at the time of the
     instant offense, (2) the instant offense of conviction
     is a felony that is either a crime of violence or a
     controlled substance offense, and (3) the defendant has
     at least two prior felony convictions of either a crime
     of violence or a controlled substance offense."

                                          4
18 U.S.C. § 16."3    Likewise, the term crime of violence as used in

U.S.S.G. § 2L1.1 is defined under 18 U.S.C. § 16.   Accordingly, we

find that Cruz and Flores govern the facts presented in this

appeal.

     In Flores, the defendant challenged the district court's

finding that he was a career offender under U.S.S.G. § 4B1.1,

arguing that his convictions for burglaries of habitations under

the former Texas Penal Code of 1925 did not constitute crimes of

violence.    We held that burglary of a habitation under the Texas

Penal Code is a crime of violence under section 4B1.1.   Flores, 875

F.2d at 1113.       Noting that 18 U.S.C. § 16(b) defined crime of

violence as any felony involving "a substantial risk that physical

force against the person or property of another may be used," we

reasoned that "[w]henever a private residence is broken into, there

is always a substantial risk that force will be used."      Id.   We

also observed that Application Note 1 of the Commentary to § 4B1.2

stated that the Commission interpreted crime of violence to include




3
     Since those decisions, U.S.S.G. § 4B1.2 has been amended
and now specifically lists the burglary of a dwelling as a crime
of violence:

     "(1) The term `crime of violence' means any offense
     under federal or state law punishable by imprisonment
     for a term exceeding one year thatSQ

            . . .

          (ii) is burglary of a dwelling, arson, or
     extortion, involves use of explosives, or otherwise
     involves conduct that presents a serious potential risk
     of physical injury to another." U.S.S.G. Appendix c,
     amendment 268.

                                  5
a conviction for burglary of a habitation.                 Id.4

      In Cruz, the defendant appealed his sentence on the ground

that the district court erroneously classified him as a career

offender under U.S.S.G. § 4B1.1.              The defendant asserted that his

prior conviction for burglary of a habitation under TEXAS PENAL CODE

ANN. § 30.02 (Vernon 1979) did not qualify as a crime of violence

under   4B1.1    because       there   was    no   evidence     that     he    used    or

threatened to use force.          Cruz, 882 F.2d at 923.             Rejecting this

argument as "meritless," id., we applied Flores and held that

Cruz's conviction for burglary of a habitation under TEXAS PENAL CODE

ANN. § 30.02 qualified as a crime of violence under section 4B1.1

as the term is defined in 18 U.S.C. § 16.                    Id.     Because Flores

dictated   that    the     defendant's        conviction     for    burglary      of   a

habitation was a crime of violence, the court in Cruz refused to

consider the defendant's argument that he used no force or threats

during the commission of the offense. Likewise, we find that Ayala

Guadardo was convicted of a crime of violence, and, accordingly, we

decline to look into the facts of this conviction.                            The clear

import of the decisions in Flores and Cruz is that burglary of a

habitation under the Texas Penal Code is always a crime of violence

under the definition in 18 U.S.C. § 16, thus obviating the need for

a   district    court    to    consider      the   factual    context     of    such   a

conviction.

      United    States    v.    Jackson,      22   F.3d   583     (5th   Cir.    1994),



4
     Amendment 268 also changed the Commentary to 4B1.2.
Application Note 2 of the revised Commentary now lists burglary
of a dwelling as a crime of violence.

                                          6
reinforces our conclusion that burglary of a habitation under the

Texas Penal Code is a crime of violence.             There, the district court

assigned the   defendant    a   base       offense    level   of   twenty   under

U.S.S.G. § 2K2.1(a)(4) because it found that his prior Texas

conviction for burglary of a building was a crime of violence.5

The district court apparently construed 4B1.2 to include any

burglary as a crime of violence.       This Court held that the district

court erred in classifying the defendant's prior conviction for

burglary of a building as a crime of violence.                In reaching this

result, the court reaffirmed its holdings in Cruz and Flores:

     "[T]his court has specifically held that the burglary of
     a habitation under Tex.Penal Code Ann. § 30.02 (1989) is
     a crime of violence for purposes of 4B1.2. Critical to
     the conclusion in Flores and Cruz is the idea that
     whenever a private residence is broken into, there is
     always a substantial risk that force will be used.
     However, when a burglary of a building is involved, it
     cannot be said that there is always a substantial risk
     that force will be used."     Jackson, 22 F.3d at 585
     (internal quotation marks and citations omitted)
     (emphasis added).

     The court in Jackson emphasized the distinctions between

burglary of a habitation and burglary of a building under the Texas

Penal Code and reasoned that "[w]hile not constituting burglary of

a dwelling, Jackson's conduct might still constitute a crime of

violence if it presented a serious potential risk of physical

injury to another."   Id.   (internal quotation marks omitted).              The

conclusion we draw from Jackson is that burglary of a habitation

under section 30.02 of the Texas Penal Code is always a crime of

violence, and therefore a sentencing court need not delve into the


5
     Application Note 5 to 2K2.1 directs the reader to 4B1.2 for
the definition of the term crime of violence.

                                       7
facts underlying such a conviction.             On the other hand, the

burglary of a building does not always constitute a crime of

violence, and thus the sentencing court may need to examine the

facts underlying the conviction.            Because Ayala Guadardo was

convicted of burglary of a habitation, we hold that the district

court correctly found that he had been convicted of a crime of

violence and properly refused to look into the facts of his

conviction for that purpose.

     Finally, we find additional support for our holding in the

Texas   Penal    Code   provisions   concerning    burglary.    The   Texas

burglary statute in effect since January 1, 1974, and at the time

of Ayala Guadardo's 1990 sentencing distinguished between burglary

of "a habitation" and burglary of "a building" other than a

habitation by classifying the former as a felony of the first

degree and the latter as a felony of the second degree.          TEX. PENAL

CODE ANN. § 30.02(c)-(d) (Vernon 1989).6         This disparate treatment

of the two offenses is consistent with our holding that the

burglary of a habitation under the Texas Penal Code is per se a

crime of violence under 18 U.S.C. § 16.

                                Conclusion

     For   the   foregoing   reasons,     the   sentence   imposed   by   the



6
     Section 30.01(1) and (2) separately define "habitation" and
"building." The same definitions are also contained in section
28.01(1) and (2).
     A 1993 amendment to section 30.02 preserved the distinction
between burglary of "a habitation" and burglary of a building.
Under the revised statute, a burglary is a first degree felony if
the premises are "a habitation" and "any party to the offense
entered the habitation with intent to commit a felony other than
felony theft." TEX. PENAL CODE ANN. § 30.02(d)(2) (Vernon 1994).

                                      8
district court is

                        AFFIRMED.




                    9
