* 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should not be published and is not precedent except under the limited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.

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 of 8 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

Clerk
No. 07-40648

2

interpretation and application of the Guidelines de novo. United 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

TEX. PENAL CODE ANN. § 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 in James v. United States, 127 S.Ct. 1586, 1599-1600

(2007), overrules this circuit’s precedent. In James, 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 of James; the Court was confronted

not with the issue of whether burglary in Florida constitutes an enumerated

offense under a Guidelines enhancement provision, but rather whether that

offense constitutes 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.) ("The analysis in James . . . does not concern

enumerated offenses and pertains only to a residual provision 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 and
No. 07-40648

3

aggravated felony convictions as sentencing factors rather than elements of the

offense that must be found by a jury. This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); United 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.