United States v. Juarez-Palomo

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 10, 2006

Charles R. Fulbruge III
Clerk
No. 05-41398
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN JUAREZ-PALOMO,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-412-ALL
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Before HIGGINBOTHAM, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

Martin Juarez-Palomo (Juarez) challenges his guilty-plea

conviction and 30-month sentence for illegal reentry following

deportation, in violation of 8 U.S.C. § 1326. Juarez asserts

that his prior California conviction for burglary under

California Penal Code § 459 is not a crime of violence, as

defined in U.S.S.G. § 2L1.2, and that, as a result, the district

court erred in assessing a 16-level crime of violence

enhancement.

*
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this opinion should not be published and is not precedent except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. 05-41398
-2-

Juarez’s prior California conviction for burglary is the

equivalent to the enumerated crime of violence offense of

burglary of a dwelling. See United States v. Murillo-Lopez, 444

F.3d 337, 344-45 (5th Cir. 2006). Accordingly, the district

court did not err in applying the § 2L1.2(b)(1)(A)(ii) 16-level

crime of violence enhancement. See id.

Juarez also contends that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Juarez contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, 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). Juarez

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.