* Pursuant to 5TH C IR . 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED August 6, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40406 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus RUBEN PACHECO-SALAZAR, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas

USDC No. 1:05-CR-858

-------------------- Before REAVELY, DENNIS, and PRADO, Circuit Judges:

PER CURIAM: * Pacheco-Salazar appeals the 90-month sentence that resulted from his guilty-plea conviction for being found in the United States without permission after deportation in violation of 8 U.S.C. § 1326. Pacheco-Salazar argues, in light of Apprendi v. New Jersey , 530 U.S. 466 (2000), that the 90-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. He challenges the constitutionality of § 1326(b)’s treatment ofNo. 06-40406 -2- prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. Pacheco-Salazar’S constitutional challenge is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998). Although he 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). PachecoSalazar 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. Pacheco-Salazar also argues that the 16-level enhancement was improper because his 1993 burglary conviction under Florida Statute § 810.02 was not a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). This court reviews the sentencing court’s interpretation and application of the Guidelines de novo because Pacheco-Salazar raised the issue in the district court. See United States v. Calderon-Pena , 383 F.3d 254, 256 (5th Cir. 2004)(en banc), cert. denied , 543 U.S. 1076 (2005). The charging document, on which the enhancement was based, expressly charged Pacheco-Salazar with entering or remaining “in a certain dwelling,” and the judgment for the Florida convictionNo. 06-40406 -3- expressly refers to a “dwelling.” Because the definition of dwelling in § 810.011(2) includes “the curtilage thereof,” Pacheco-Salazar’s offense may have occurred on the “curtilage” of the property, which would not constitute a “burglary of a dwelling” under § 2L1.2. See United States v. Gomez-Guerra , 485 F.3d 301, 303-04 (5th Cir. 2007). Accordingly, Pacheco-Salazar was not convicted of the enumerated offense of “burglary of a dwelling.” See id. Because the district court improperly calculated the sentencing guideline range, we VACATE and REMAND for resentencing.
VACATED AND REMANDED FOR RESENTENCING.