United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-41152
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARIA GARCIA-MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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Before DAVIS, JONES and GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
In this appeal, we consider whether the district court
correctly enhanced appellant’s sentence based on its conclusion
that defendant’s prior Texas conviction for second degree
burglary of a habitation qualified as a crime of violence under
U.S.S.G. § 2L1.1. We conclude that this conviction is equivalent
to burglary of a dwelling, an enumerated offense under that
guideline, and agree with the district court that the enhancement
was proper.
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I.
Garcia-Mendez was charged in a single-count indictment with
illegal presence in the United States after deportation, in
violation of 8 U.S.C. § 1326. He pled guilty under a plea
agreement in which the government agreed to recommend the low end
of the guideline range, a two-level decrease for acceptance of
responsibility and an additional two-level decrease for early
disposition.
The Presentence Report (“PSR”) recommended a 16-level
sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) due to
Garcia-Mendez’s conviction of a “crime of violence” felony.
Garcia-Mendez objected initially to the enhancement on the ground
he had not been convicted of burglary of a habitation, but
rather, this charge had been dropped down to a lesser offense
which would not qualify as a crime of violence. When that
objection could not be supported factually, he objected that the
16-level enhancement was excessive. The district court denied
the objection. With the promised reductions for acceptance of
responsibility and early disposition, Garcia-Mendez’s total
offense level was 19. With a criminal history category of II,
the guideline range was 33 to 51 months. The district court
sentenced Garcia-Mendez to 33 months imprisonment. Garcia-Mendez
appeals.
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II.
The main issue in this appeal is whether Garcia-Mendez’s
prior conviction is a “crime of violence” supporting the 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We ordinarily
review this determination de novo. United States v. Calderon-
Pena, 383 F.3d 254, 256 (5th Cir. 2004)(en banc). However,
because Garcia-Mendez did not object to the enhancement on the
ground raised in this appeal, we review for plain error.1 United
States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). This
court “find[s] plain error only if: (1) there was error; (2) the
error was clear and obvious; and (3) the error affected the
defendant’s substantial rights. When these elements are present,
[this Court] may exercise [its] discretion to correct the error
only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (Internal citations and
quotation marks omitted).
Section 2L1.2 (b)(1)(A)(ii) provides for a 16-level
enhancement to a defendant’s offense level when a defendant was
1
The government suggests that Garcia-Mendez waived this
issue by withdrawing his objection that he had not been convicted
of the offense burglary of a habitation. We disagree. This is
not a situation in which the appellant is attempting to raise the
exact objection previously withdrawn at sentencing. See United
States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). The issue
raised in this appeal, that his prior conviction does not fit
within the definition of a “crime of violence” under the
applicable guideline provision, is legally distinct from his
prior objection questioning what crime he had previously been
convicted of.
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previously deported after a conviction for a crime of violence.
A conviction can qualify as a “crime of violence” under this
provision in one of two ways. First, it qualifies if the
conviction is one of the offenses enumerated as crimes of
violence. Second, if the conviction is not for one of the
enumerated offenses, it still qualifies if it is “any offense
under federal, state or local law that has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 2L1.2, comment n.1(B)(iii). The
enumerated crimes include “burglary of a dwelling.”
Garcia-Mendez was previously convicted of burglary of a
habitation in violation of Texas law. The Texas statute states
that a person commits burglary if he enters a building closed to
the public, or a habitation, without the consent of the owner,
with the intent to commit a felony, theft, or an assault. Tex.
Penal Code § 30.02(a)(1) (2000). Habitation is defined as “a
structure or vehicle that is adapted for overnight accommodation
of persons, and includes: (A) each separately secured or occupied
portion of the structure or vehicle; and (B) each structure
appurtenant to or connected with the structure or vehicle.” Tex.
Penal Code § 30.01(1)(2000).
Garcia-Mendez argues that his offense of burglary of a
habitation does not fit within the enumerated offense of burglary
of a dwelling because the definition of a “habitation” under the
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Texas offense, which includes “each structure appurtenant to or
connected with the structure or vehicle,” is broader than the
definition of a “dwelling” as is commonly understood in a
criminal law context.2 The government argues that burglary of a
habitation is equivalent to the enumerated offense of burglary of
a dwelling, citing case law from this circuit.
In United States v. Hornsby, 88 F.3d 336, 339 (5th Cir.
1996), this court found that a conviction for burglary of a
habitation qualified as a crime of violence under U.S.S.G. §
4B1.2(1)(ii). Although the definition of “crime of violence” in
§ 4B1.1 is slightly different from the definition of the same
term in § 2L1.2, both guideline sections list “burglary of a
dwelling” as an enumerated crime of violence. In Hornsby, we
said that: “. . . burglary of a habitation is considered a crime
of violence.” We read this as a conclusion that the crime
“burglary of a habitation” is equivalent to the enumerated
offense “burglary of a dwelling.” This conclusion that the prior
conviction for burglary of a habitation is an enumerated offense
makes irrelevant the difference in the definition of crime of
violence in the two guideline sections. The district court
2
Garcia-Mendez’s indictment does not indicate what type of
habitation he was accused of entering. He was indicted for
“unlawfully, with intent to commit SEXUAL ASSAULT, enter a
habitation owned by ISABELLE NAVA.”
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therefore did not commit plain error in concluding that Garcia-
Mendez’s prior conviction was a crime of violence under § 2L1.1.
III.
Finally, Garcia argues that Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2001) should be
interpreted to overrule Almendarez-Torres v. United States, 523
U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998). As Garcia
concedes, this last argument is precluded by existing circuit
precedent. See, e.g., United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000).
IV.
For the foregoing reasons, Garcia-Mendez’s sentence is
AFFIRMED.
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