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United States v. Castillo-Medina , 251 F. App'x 301 ( 2007 )


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  •           IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 18, 2007
No. 07-40160
Summary Calendar              Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GUSTAVO CASTILLO-MEDINA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-1007-1
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gustavo Castillo-Medina appeals his conviction and sentence for illegal
reentry following deportation in violation of
    8 U.S.C. §§ 1326
    (a) and (b).
Castillo-Medina 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 1992 Texas conviction for burglary of a habitation
constitutes a crime of violence. Because Castillo-Medina did not object to 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should not be published and is not precedent except under the limited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. 07-40160
imposition of the enhancement in the district court, review is for plain error.
See United States v. Garza-Lopez,
    410 F.3d 268
    , 272 (5th Cir. 2005).
Castillo-Medina 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 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
    , 304 & n.3 (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
    (2)(B)(ii), 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 plainly err in applying the enhancement under
§ 2L1.2(b)(1)(A)(ii). See Gomez-Guerra,
    485 F.3d at 304
    ; United States v.
Garcia-Mendez,
    420 F.3d 454
    , 456-57 (5th Cir. 2005); see also United States v.
Murillo-Lopez,
    444 F.3d 337
    , 339, 344 (5th Cir. 2006).
In light of Apprendi v. New Jersey,
    530 U.S. 466
     (2000), Castillo-Medina
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.
2