* Pursuant to 5 TH 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R. 47.5.4. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40648 Summary Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE LUIS MARIN-SOTO, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:06-CR-1425-ALL
Before SMITH, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Jose Luis Marin-Soto appeals his guilty-plea conviction and sentence for being present in the United States following deportation, in violation of8 U.S.C. § 1326. Marin-Soto argues that the district court erred in enhancing his sentence pursuant to § 2L1.2(b)(1)(A)(ii) of the Federal Sentencing Guidelines, based on the determination that his 1998 Texas conviction for burglary of a habitation constitutes a crime of violence. We review the district court’s United States Court of Appeals

Fifth Circuit 

### F I L E D May 13, 2008 Charles R. Fulbruge III ClerkNo. 07-40648

2 interpretation and application of the Guidelines de novo
. U nited States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006). As Marin-Soto recognizes, this court has already held that a violation of T EX
. P ENAL CODE A NN
. § 30.02(a)(1), the statute of his previous conviction, is a crime of violence for purposes of § 2L1.2. See United States v. Garcia-Mendez, 420F.3d 454 (5th Cir. 2005). Nevertheless, Marin-Soto argues that the Supreme Court’s recent decision i n James v. United States, 127 S.Ct. 1586, 1599-1600 (2007), overrules this circuit’s precedent. In J ames, the Supreme Court noted in dicta that because the Florida burglary statute at issue criminalizes 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 ofJ ames; the Court was confronted not with the issue of whether burglary in Florida constitutes an enumerated offense under a Guidel ines enhancement provision, but rather whether that offense constitutes a "violent felony" for purposes ofthe 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.) ("The analysis in J ames
. . . does not concern enumerated offenses and pertains only to a residual provisi on in § 924(e)(2)(B)(ii) . . . ."), cert. denied, 128 S. Ct. 156 (2007) . Even applying the dicta in James, Marin-Soto's argument fails. Unlike 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). As such, the Supreme Court's guidance in James does not undermine our conclusion in Garcia-Mendez that a violation of § 30.02(a)(1) constitutes "burglary of a dwelling" as that phrase is generically used. In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Marin-Soto challenges the constitutionality of § 1326(b)’s treatment of prior felony andNo. 07-40648

3 aggravated felony convictions as sentencing factors rather than elements ofthe offense that must be found by a jury. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); U nited States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008). Accordingly, the judgment of the district court is AFFIRMED.