United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 19, 2006
Charles R. Fulbruge III
Clerk
No. 05-41559
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALEXANDER VALDEZ-MEDINA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2572-ALL
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Alexander Valdez-Medina (Valdez) appeals the 48-month
sentence he received following his guilty-plea conviction for
illegal reentry, in violation of 8 U.S.C. § 1326. He 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). We have held,
however, that a Texas conviction for burglary of a habitation is a
crime of violence under § 2L1.2(b)(1)(A)(ii) because it was
equivalent to the enumerated offense of burglary of a dwelling.
*
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this opinion should not be published and is not precedent except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. 05-41559
-2-
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.
2005), cert. denied, 126 S. Ct. 1398 (2006). Valdez concedes that
his argument is foreclosed by Garcia-Mendez and raises it to
preserve it for possible Supreme Court review.
Valdez’s constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although Valdez
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. See United States v. Garza-Lopez, 410 F.3d
268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Valdez
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it also to
preserve it for further review.
Valdez’s conviction and sentence are AFFIRMED. We REMAND to
the district court for correction of the judgment pursuant to FED.
R. CRIM. P. 36 to reflect, in the written Statement of Reasons, that
Valdez had a criminal history category IV, not V, and that the
applicable guidelines range was 57 to 71 months of imprisonment,
not 70 to 87 months.
AFFIRMED. REMANDED FOR CORRECTION OF CLERICAL ERROR.