IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 25, 2008
No. 08-40210
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HERIBERTO CARDENAS-CARDENAS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:
Heriberto Cardenas-Cardenas appeals the sentence imposed following his
conviction on his guilty plea to a charge of being an alien unlawfully present in
the United States after deportation. He argues that the district court reversibly
erred by imposing a 16-level increase to his base offense level based upon its
determination that his prior Texas conviction for burglary of a habitation
constituted a crime of violence.
As Cardenas-Cardenas acknowledges, a panel of this court previously held
that a violation of TEX. PENAL CODE ANN. § 30.02(a)(1), the statute pertaining to
his prior burglary conviction, is a crime of violence for purposes of § 2L1.2
because it is equivalent to the enumerated offense of burglary of a dwelling. See
No. 08-40210
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005); see also
U.S.S.G. § 2L1.2, comment n.1(B)(iii). Nevertheless, Cardenas-Cardenas argues
that the Supreme Court’s recent decision in James v. United States, 127 S. Ct.
1586, 1599-1600 (2007), overrules this circuit’s precedent. We disagree and
determine that this argument is, as Cardenas-Cardenas concedes, foreclosed.
In James, the Supreme Court noted in dicta that because the Florida
burglary statute at issue in that case criminalized the mere unlawful entry onto
the curtilage of a structure, rather than entry into the structure itself, the
statute contemplates conduct beyond generic burglary. Id. at 1599. This,
however, was not the holding of James, which did not present the issue whether
burglary in Florida constitutes an enumerated offense that could be used to
impose a guidelines sentencing adjustment under 2L1.2. Rather, James raised
the question whether a Florida burglary conviction was a violent felony for
purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Id. at 1590; see
also United States v. Gomez-Guerra, 485 F.3d 301, 303 (5th Cir.), cert. denied,
128 S. Ct. 156 (2007).
Cardenas-Cardenas’s argument is unavailing even under the James dicta.
In contrast to Florida’s burglary statute, “habitation” under § 30.02(a)(1) does
not include the curtilage surrounding the habitable structure. See § 30.01(1); St.
Julian v. State, 874 S.W.2d 669, 671 (Tex. Crim. App. 1994). Consequently,
James does not undermine our conclusions in Garcia-Mendez that a violation of
§ 30.02(a)(1) constitutes “burglary of a dwelling” as that phrase is generically
used and, concomitantly, that a conviction under that statute will support a
sentencing adjustment under § 2L1.2(b)(1)(A)(ii).
Cardenas-Cardenas has shown no error in connection with his sentence.
Accordingly, the judgment of the district court is AFFIRMED.
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