United States v. Juarez-Palomo ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-41398
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN JUAREZ-PALOMO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-412-ALL
--------------------
Before HIGGINBOTHAM, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
Martin Juarez-Palomo (Juarez) challenges his guilty-plea
conviction and 30-month sentence for illegal reentry following
deportation, in violation of 8 U.S.C. § 1326. Juarez asserts
that his prior California conviction for burglary under
California Penal Code § 459 is not a crime of violence, as
defined in U.S.S.G. § 2L1.2, and that, as a result, the district
court erred in assessing a 16-level crime of violence
enhancement.
*
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this opinion should not be published and is not precedent except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. 05-41398
-2-
Juarez’s prior California conviction for burglary is the
equivalent to the enumerated crime of violence offense of
burglary of a dwelling. See United States v. Murillo-Lopez, 444
F.3d 337, 344-45 (5th Cir. 2006). Accordingly, the district
court did not err in applying the § 2L1.2(b)(1)(A)(ii) 16-level
crime of violence enhancement. See id.
Juarez also contends that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Juarez contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Juarez
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
AFFIRMED.