IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41381
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIKE ROBERT SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-98-CV-233
USDC No. C-96-CR-114-1
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October 20, 1999
Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.
PER CURIAM:*
Mike Robert Salinas, a federal prisoner (# 68915-079),
appeals from the district court’s denial of his 28 U.S.C. § 2255
motion to vacate his federal bank-robbery sentence. The district
court granted Salinas a certificate of appealability on the issue
whether “he was denied his constitutional right to effective
assistance of counsel on the grounds that his attorney failed to
adequately investigate his prior state court convictions.” Two
of these convictions were deemed “crimes of violence” under
*
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that this opinion should not be published and is not precedent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. 98-41381
-2-
U.S.S.G. § 4B1.2(a) and were used to deem Salinas a “career
offender” and enhance his sentence under § 4B1.1.
Specifically, Salinas is contending that his trial attorney
should have challenged the court’s use of a 1987 guilty-plea
conviction for attempted burglary; he asserts that the 1987
conviction was not for attempted burglary of a “dwelling” but of
a vacant apartment. Because Salinas’ Presentence Report
indicated that he had attempted to burglarize “a habitation owned
by” a particular person, and because there is no indication in
the record that Salinas ever informed his attorney or the court
that such “habitation” was vacant, the attorney did not perform
deficiently by failing to argue that such offense was not a
“crime of violence” for “career offender” purposes. See
Strickland v. Washington, 466 U.S. 668, 687-89 (1984); cf. United
States v. Jackson, 22 F.3d 583, 584-85 (5th Cir. 1994) (burglary
of house that had been vacant for seven years was not burglary of
a “dwelling” and was thus not a “crime of violence” for “career
offender” purposes). Accordingly, Salinas has not shown that his
attorney performed ineffectively, and the district court’s denial
of his § 2255 motion is AFFIRMED.
AFFIRMED.