United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40795
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HIPOLITO ARCE-GONZALEZ, also known as Jose Luis
Pulido-DeLeon,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-936-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Hipolito Arce-Gonzalez (Arce) appeals his conviction and
sentence following his guilty plea to being illegally present in
this country following removal. Arce argues that the district
court erred by finding that his prior Texas felony conviction for
burglary of a habitation was a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). In United States v. Garcia-Mendez, 420
F.3d 454, 456-57 (5th Cir. 2005), petition for cert. filed (Dec.
15, 2005) (No. 04-41152), this court held that a prior Texas
*
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this opinion should not be published and is not precedent except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. 05-40795
-2-
conviction for burglary of a habitation was a prior conviction
for a crime of violence under § 2L1.2(b)(1)(A)(ii) because it was
equivalent to the enumerated offense of burglary of a dwelling.
Arce asserts that Garcia-Mendez is inapposite to the present case
because the issue in that case was reviewed for plain error and
because this court did not apply the categorical analysis
mandated by Taylor v. United States, 495 U.S. 575 (1990).
Although review of this issue in Garcia-Mendez was for plain
error, this court clearly held that a Texas conviction for
burglary of a habitation was a conviction for a crime of violence
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). See Garcia-Mendez, 420 F.3d
at 456-57. Arce’s argument that this court did not properly
apply the categorical analysis of Taylor in Garcia-Mendez is
tantamount to arguing that Garcia-Mendez was incorrectly decided,
and is unavailing. Garcia-Mendez resolved the issue raised in
this case, and one panel of this court may not ignore the
precedent set by a prior panel. United States v. Ruiz, 180 F.3d
675, 676 (5th Cir. 1999).
Arce’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Arce contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding.
No. 05-40795
-3-
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Arce properly concedes that
his argument is foreclosed in light of Almendarez-Torres and
circuit precedent, but he raises it here to preserve it for
further review.
AFFIRMED.