United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 15, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41231
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
LUIS ANGEL MALDONADO,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-206-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Luis Angel Maldonado challenges his sentence for being present in the United
States illegally after having been deported following conviction for a felony, in violation of 8 U.S.C.
§ 1326(a) and (b). First he asserts that the district court erred by finding that his prior Texas
convictions for burglary of a habitation were crimes of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
The district court did not err. See United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005),
cert. denied, 126 S. Ct. 1398 (2006). Maldonado’s argument that we failed to apply the categorical
analysis of Taylor v. United States, 495 U.S. 575 (1990), in Garcia-Mendez is essentially an
argument that Garcia-Mendez was incorrectly decided, and it is unavailing. See Burge v. Parish of
St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).
Similarly, Maldonado asserts that the district court plainly erred by assessing criminal history
points pursuant to § 4A1.1(f) for two prior burglary of a habitation convictions, based on a finding
that they were crimes of violence under § 4B1.2(a). Burglary of a habitation in Texas is the
equivalent of the enumerated offense of “burglary of a dwelling” under § 4B1.2(a)(2), and therefore
it is a crime of violence under that section. See United States v. Hornsby, 88 F.3d 336, 339 (5th Cir.
1996). Maldonado’s assertion that Hornsby does not control because we did not apply Taylor is not
persuasive. See Burge, 187 F.3d at 466.
Finally, although Maldonado contends that Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), was incorrectly decided and that a majority of the Supreme Court would overrule
it 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. See United States v. Garza-Lopez,
410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Maldonado 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.
The judgment of the district court is AFFIRMED.