United States v. Zarazua-Aleman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 15, 2008
No. 07-40498
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE ZARAZUA-ALEMAN, also known as Jose Alfredo Zarazua, also known as
Jose Alfredo Sarazua
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-70-1
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Zarazua-Aleman appeals his conviction and sentence for being found
unlawfully in the United States, following removal. He presents two issues.
Zarazua maintains the district court erred in applying a 16-level
enhancement, pursuant to Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), based on
determining his prior Texas conviction for burglary of a habitation was a crime
of violence (COV). Zarazua recognizes our court has held that an offense
*
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should not be published and is not precedent except under the limited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. 07-40498
committed under Texas Penal Code § 30.02(a)(1) (burglary of a habitation), the
statute of his conviction, is a COV for purposes of § 2L1.2, but he maintains the
recent decision in James v. United States, 127 S. Ct. 1586, 1599-1600 (2007),
overrules our court’s precedent. This contention is without merit; James does
not concern enumerated offenses and pertains only to a residual provision in 18
U.S.C. § 924(e)(2)(B)(ii), which § 2L1.2 does not contain. See United States v.
Gomez-Guerra, 485 F.3d 301, 303 n.1 (5th Cir.), cert. denied, 128 S. Ct. 156
(2007). The district court did not err in applying the COV enhancement. See
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005).
In the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Zarazua
challenges the constitutionality of 8 U.S.C. § 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 contention 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, 2008 WL 59441
(Jan. 7, 2008) (No. 07-6202).
AFFIRMED.
2