United States v. Gamez-Silva

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2008
No. 08-40042
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROLANDO GAMEZ-SILVA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:07-CR-940-ALL
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Rolando Gamez-Silva appeals from his sentence for being an alien
unlawfully found in the United States after deportation following a felony
conviction. He asserts that the district court erred by imposing a 16-level
enhancement based upon his prior Texas conviction for burglary of a habitation.
Although he recognizes our precedent that this offense is a crime of violence for
U.S.S.G. § 2L1.2 purposes, he argues that James v. United States, 127 S. Ct.
*
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should not be published and is not precedent except under the limited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. 08-40042
1586, 1599-1600 (2007), overrules 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 the Texas offense of burglary of a
habitation constitutes a crime of violence for purposes 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 Government’s motions for summary affirmance and to waive the
requirement to file an appellee’s brief are GRANTED, the Government’s motion
for an extension of time to file an appellee’s brief is DENIED, and the judgment
of the district court is AFFIRMED.
2