Summary Calendar UNITED STATES OF AMERICA v. Salvador Briseno-Benavidez

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40554
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SALVADOR BRISENO-BENAVIDEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-68-1
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Salvador Briseno-Benavidez pleaded guilty to illegal reentry after
deportation, in violation of 8 U.S.C. § 1326(a) and (b). He appeals both his
conviction and sentence.
Briseno maintains the district court erred by imposing a 16-level, crime-of-
violence increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior Texas
conviction for burglary of a habitation. Although post-Booker, the Sentencing
United States Court of Appeals
Fifth Circuit
F I L E D
April 24, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40554
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Guidelines are advisory only, and an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 128 S. Ct. 586, 596 (2007). In that
respect, its application of the guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir.
2005).
Briseno asserts the definition of habitation under Texas law is broader
than the generic, contemporary meaning of dwelling as used in the enumerated
offense of burglary of a dwelling in the Sentencing Guidelines. Although he
acknowledges this court’s precedent to the contrary, Briseno asserts it has been
overruled by the Supreme Court’s decision in James v. United States, 127 S. Ct.
1586, 1599-1600 (2007). This contention is without merit; James did not involve
an enumerated offense. See United States v. Gomez-Guerra, 485 F.3d 301, 303
& n.1 (5th Cir. 2007). As a result, the district court did not err in determining
that Briseno’s prior conviction was a crime of violence. See United States v.
Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.), cert. denied, 127 S. Ct. 265 (2006).
In the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Briseno
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).
AFFIRMED.

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