IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 8, 2008
No. 06-51070
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HERIBERTO GONZALEZ-SINSOON, also known as Miguel Garcia-Mendez,
also known as Heriberto Bautista-Sosa
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CR-85-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Heriberto Gonzalez-Sinsoon (Gonzalez) appeals the 77-month sentence
imposed following his guilty-plea conviction of being illegally present in the
United States following removal. He argues that the district court erred in
applying a 16-level crime-of-violence enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his North Carolina conviction for breaking or
entering.
*
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should not be published and is not precedent except under the limited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. 06-51070
In determining whether an offense is an enumerated crime of violence
under the Guidelines, we are not bound by the label given to the conviction by
the state. United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006). The
North Carolina statute under which Gonzalez was convicted applies where
“[a]ny person . . . breaks or enters any building with intent to commit any felony
or larceny therein.” N.C. GEN STAT. § 14-54(a). This statutory definition may
be narrowed by the allegation of the indictment to which Gonzalez pleaded
guilty. See United States v. Carbajal-Diaz, F.3d , 2007 WL4154062, *2 (5th
Cir. Nov. 26, 2007). The indictment, which is of record, specifies that Gonzalez’s
breaking or entering offense involved a building used as a residence. Because
Gonzalez’s breaking or entering offense, as narrowed by the indictment,
satisfies the definition of the enumerated offense of burglary of a dwelling the
district court did not err in applying the enhancement. See id. at **4-5; United
States v. Ortega-Gonzaga, 490 F.3d 373, 395 (5th Cir. 2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Gonzalez also
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This court has held that this issue is
“fully foreclosed from further debate.” United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007)), petition for cert. filed (Aug. 28, 2007) (No.
07-6202).
AFFIRMED.
2