United States v. Salinas-Lucio , 272 F. App'x 404 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 3, 2008
No. 07-20563
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE LUIS SALINAS-LUCIO, also known as Jose Luis Lucio Salinas, also
known as Jorge Salinas-Lucio
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-396-1
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Luis Salinas-Lucio was convicted of one count of illegal reentry into
the United States following conviction of an aggravated felony, and the district
court sentenced him to serve 46 months in prison and a three-year term of
supervised release. Salinas-Lucio appeals his conviction and sentence.
Salinas-Lucio contends that the district court erred by denying his motion
to dismiss the indictment, which was grounded in a collateral attack on 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20563
removal order issued in his prior deportation proceedings. Salinas-Lucio
maintains that he was improperly deprived of administrative and judicial review
of the removal order because the immigration judge who presided over these
proceedings failed to properly advise him of his eligibility for discretionary relief.
Salinas-Lucio further argues that he would likely have obtained the disputed
relief if he knew it was available. He concedes that this claim is foreclosed by
this court’s jurisprudence, but he raises it to preserve it for further review.
Because the relief requested by Salinas-Lucio “is available within the broad
discretion of the Attorney General, [it] is not a right protected by due process.”
United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002). Consequently,
Salinas-Lucio has not shown that his collateral challenge to his prior deportation
order should succeed, nor has he shown that the district court erred by denying
his motion to dismiss his indictment. See id.
Salinas-Lucio also argues that the district court erred by imposing a 16-
level adjustment to his offense level based on his prior Texas conviction for
burglary of a habitation. He recognizes this court’s prior holding that an offense
committed under TEX. PENAL CODE § 30.02(a)(1), the statute of his conviction, is
a crime of violence for § 2L1.2 purposes, but he argues that 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 does not concern enumerated
offenses and pertains only to a residual provision in 18 U.S.C. § 924(e)(2)(B)(i)
that is absent from § 2L1.2. 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 disputed adjustment. 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).
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No. 07-20563
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Salinas-Lucio
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, 128 S. Ct. 872
(2008).
Salinas-Lucio has shown no error in connection with his conviction and
sentence. Accordingly, the judgment of the district court is AFFIRMED.
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