United States v. Linares-Hernandez , 284 F. App'x 128 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 27, 2008
No. 07-40995
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARMANDO LINARES-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 2:07-CR-324-1
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Armando Linares-Hernandez appeals his sentence for unlawful presence
in the United States following removal. He asserts that the district court erred
by imposing a 16-level enhancement based on his conviction of burglary of a hab-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40995
itation under § 30.02(a)(1) of the Texas Penal Code. Although he recognizes our
precedent that this offense is a crime of violence for purposes of U.S.S.G. § 2L1.2,
he argues that James v. United States, 127 S. Ct. 1586, 1599-1600 (2007), over-
rules it.
His argument is unpersuasive. In United States v. Gomez-Guerra, 485
F.3d 301, 303 n.1 (5th Cir.), cert. denied, 128 S. Ct. 156 (2007), we noted that
James pertains only to a residual provision of 18 U.S.C. § 924(e)(2)(B)(i) that is
absent from § 2L1.2. Consequently, James is not dispositive. Because we have
held that an offense under § 30.02(a)(1) constitutes a crime of violence for pur-
poses of § 2L1.2, the district court did not err in applying the enhancement. See
Gomez-Guerra, 485 F.3d at 304 & n.3; United States v. Garcia-Mendez, 420 F.3d
454, 456-57 (5th Cir. 2005).
The judgment is AFFIRMED.
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