* 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this opinion should not be published and is not precedent except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.

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 of
No. 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 conviction
No. 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.