UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-10393

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE AYALA GUADARDO,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Texas

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(December 2, 1994)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Jorge Ayala Guadardo (Ayala Guadardo)

appeals his sentence imposed by the district court. We affirm.

Facts and Proceedings Below

Ayala Guadardo pleaded guilty to a one-count indictment

charging him with illegal re-entry into the Unit ed States after

deportation subsequent to a felony conviction in violation of 8

U.S.C. § 1326(b)(1). The factual resume signed by Ayala Guadardo

at the time of his guilty plea recited:

"On July 6, 1990, the defen dant, Jorge Ayala

Guadardo, was convicted in the 291st District Court of1 Although we do not have the record of Ayala Guadardo's

burglary conviction before us, we find ample evidence to support

the PSR's statement that he was convicted for burglary of a

Habitation. In addition to the statement in the signed factual

resume reciting his 1990 conviction for "Burglary of a

Habitation," which he has never challenged or sought to withdraw,

Ayala Guadardo's attorney stated at sentencing that his client

had been convicted of burglary of a habitation and sought to

2 Dallas County, Texas for the offense of B urglary of a

Habitation. He received a 10 year sentence.

On May 20, 1991, the defendant was released on

parole. He was deported to El Salvador on June 19, 1991.

On December 28, 1993, the defendant was found in the

United States at Dallas County, T exas. He had not

obtained the consent of the Attorney General of the

United States to reapply for admission into the United

States."

The Presentence Report (PSR) re cited that on July 6, 1990,

Ayala Guadardo "was convicted of the offense of Burglary of a

Habitation, in Harris County, and was sentenced to 10 years in

TDC," and accordingly increased his offense level by sixteen levels

pursuant to U.S.S.G. § 2L1.2(b)(2) because he had been deported

after a conviction of an aggravated felony. Ayala Guadardo filed

an objection to the PSR contending that his 1990 Texas conviction

for burglary of a habitation was not an aggravated felony and that

therefore his base offense level should have been increased by only

four levels. At the sentencing proceeding, the district court

overruled Ayala Guada rdo's objection and adopted the PSR. Ayala

Guadardo then requested that the court look into the facts

underlying his burglary convi ction, which, he argued, should not

have been class ified as a crime of violence in the PSR. While

raising these arguments, Ayala Guadar do has never denied that he

was convicted of burglary of a habitation under the Texas Penal

Code. 1explain the facts surrounding the conviction. Finally, Ayala

Guadardo's brief filed with this Court again confirmed that

"Appellant was convicted of burglary of a habitation and received

10 years confinement in T.D.C."

3 The district court refused to explore the f acts surrounding

Ayala Guadardo's burglary conviction and sentenced him to a sixtymonth prison term, three years of supervised release, and a

mandatory special assessment of fifty dollars. In this appeal,

Ayala Guadardo argues that the district court erred in concluding

that burglary of a habitation constitutes an aggravated felony

under U.S.S.G. § 2L1.2(b)(2) and in refusing to consider in that

respect the facts underlying his conviction for burg lary of a

habitation. We affirm.

Discussion

We will uphold a sentence imposed under the guidelines unless

it is imposed in violation of law, is the result of an incorrect

application of the guidelines, or is an unreasonable departure from

the applicable guideline range. 18 U.S.C. § 3742(e); U nited States

v. Anderson

, 5 F. 3d 795, 798 (5th Cir. 1993), c ert. denied

, 114

S.Ct. 1118 (1994). Application of the guidelines is a question of

law subject to de novo review. United States v. Howard , 991 F.2d

195, 199 (5th Cir.), cert. denied

, 114 S.Ct. 395 (1993). We review

the factual findings of the district court for clear error. Id.

U.S.S.G. § 2L1.2 provides for a sixteen-point increase in the

base offense level "[i]f the defendant previously was deported

after a conviction for an aggravated felony." I d. The definition

of aggravated felony in Application Note 7 of the Commentary to

section 2L1.1 includes "any crime of violence (as defined under 182 U.S.S.G. § 4B1.1 reads:

"A defendant is a career offender if (1) the defendant

was at least eighteen years old at the time of the

instant offense, (2) the instant offense of conviction

is a felony that is either a crime of violence or a

controlled substance offense, and (3) the defendant has

at least two prior felony convictions of either a crime

of violence or a controlled substance offense."

4 U.S.C. § 16, not including a purely political offense) for which

the term of imprisonment imposed (regardless of any suspension of

such imprisonment) is at least five years." 8 U.S.C. § 16

provides:

"The term `crime of violence' means SQ

(a) an offense that has as an element the use,

attempted use, or threatened use of physical force

against the person or property of another, or

(b) any other offense that is a felony and that, by

its nature, involves a substantial risk that physical

force against the per son or property of another may be

used in the course of committing the offense." 18 U.S.C.

§ 16.

Ayala Guadardo argues that his conviction for bur glary of a

habitation under section 30.02 of the Texas Penal Code does not

constitute a crime of violence under U.S.S.G. § 2L1.2. We

disagree. We have held that burglary of a habitation under section

30.02 of the Texas Penal Code constitutes a crime of violence under

18 U.S.C. § 16. U nited States v. Cru z , 882 F.2d 922 (5th Cir.

1989); United States v. Flores

, 875 F.2d 1110 (5th Cir. 1989).

Cruz and Flores both involved the application of the career

offen der provisions of U.S.S.G. § 4B1.1. 2 At the time of

sentencing in Cruz and Flores

, U.S.S.G. § 4B1.2 stated that the

term crime of violence "as used in this provision is defined under3 Since those decisions, U.S.S.G. § 4B1.2 has been amended

and now specifically lists the burglary of a dwelling as a crime

of violence:

"(1) The term `crime of violence' means any offense

under federal or state law punishable by imprisonment

for a term exceeding one year that SQ

. . .

(ii) is burglary of a dwelling, arson, or

extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk

of physical injury to another." U.S.S.G. Appendix c,

amendment 268.

5 18 U.S.C. § 16." 3 Likewise, the term crime of violence as used in

U.S.S.G. § 2L1.1 is defined under 18 U.S.C. § 16. Accordingly, we

find that Cruz and Flores govern the facts presented in this

appeal.

In Flores

, the defendant challenged the district court's

finding that he was a career offender under U.S.S.G. § 4B1.1,

arguing that his convictions for burglaries of habitations under

the former Texas Penal Code of 1925 did not constitut e crimes of

violence. We held that burglary of a habitation under the Texas

Penal Code is a crime of violence under section 4B1.1. F lores

, 875

F.2d at 1113. Noting that 18 U.S.C. § 16(b) defined crime of

violence as any felony involving "a substantial risk that physical

force against the person or property of a nother may be used," we

reasoned that "[w]henever a private residence is broken into, there

is always a subst antial risk that force will be used." I d. We

also observed that Application Note 1 of the Commentary to § 4B1.2

stated that the Commission interpreted crime of violence to include4 Amendment 268 also changed the Commentary to 4B1.2.

Application Note 2 of the revised Commentary now lists burglary

of a dwelling as a crime of violence.

6 a conviction for burglary of a habitation. Id. 4

In Cruz

, the defendant appealed his s entence on the ground

that the district court erroneously classified him as a career

offender under U.S.S.G. § 4B1.1. The defendant asserted that his

prior conviction for burglary of a habitation under T EXAS P ENAL C ODE

A NN

. § 30.02 (Vernon 1979) did not qualify as a crime of violence

under 4B1.1 because there was no evidence that he used or

threatened to use force. C ruz

, 882 F.2d at 923. Rejecting this

argument as "meritless," id.

, we applied F lores and held that

Cruz's conviction for burglary of a habitation under T EXAS P ENAL C ODE

A NN

. § 3 0 .02 qualified as a crime of violence under section 4B1.1

as the term is defined in 18 U.S.C. § 16. I d. Because F lo res

dictated that the defendant's convi ction for burglary of a

habitation wa s a crime of violence, the court in C ruz refused to

consider the defendant's argument that he used no force or threats

during the commission of the offense. Likewise, we find that Ayala

Guadardo was convicted of a crime of violence, and, accordingly, we

decline to look into the facts of this conviction. The clear

i mport of the decisions in F lores and Cruz is that burglary of a

habitation under the Texas Penal Code is always a crime of violence

under the definition in 18 U.S.C. § 16, thus obviating the need for

a district court to consider the factual context of such a

conviction.

United States v. Jackson

, 22 F.3d 583 (5th Cir. 1994),5 Application Note 5 to 2K2.1 directs the reader to 4B1.2 for

the definition of the term crime of violence.

7 reinforces our conclusion that burglary of a habitation under the

Texas Penal Code is a crime of violence. There, the district court

assigned the defendant a base offense level of twenty under

U.S.S.G. § 2K2.1(a)(4) because it found that his prior Texas

conviction for burglary o f a building was a crime of violence. 5

The district court apparently construed 4B1.2 to incl ude any

burglary as a crime of violence. This Court held that the district

court erre d in classifying the defendant's prior conviction for

burglary of a building as a crime of violence. In reaching this

result, the court reaffirmed its holdings in Cruz and Flores :

"[T]his court has specifically held that the burglary of

a habitation under Tex.Penal Code Ann. § 30.02 (1989) is

a crime of violence for purposes of 4B1.2. Critical to

the conclusion in Flores and Cruz is the idea that

whenever a private res idence is broken into, there is

always a substantial risk that fo rce will be used.

However, when a burglary of a b uilding is involved, it

cannot be said that there i s a lways a substantial risk

that force will be used." J ackson

, 22 F.3d at 585

(internal quotation marks and citations omitted)

(emphasis added).

The court in Jackson emphasized the distinctions between

burglary of a habitation and burglary of a building under the Texas

Penal Code and reasoned that "[w]hile not constituting burglary of

a dwelling, J ackson's conduct might still constitute a crime of

violence i f it presented a serious potential risk of physical

injury to another." I d. (internal quotation marks omitted). The

conclusion we draw from Jackson is that burglary of a habitation

under section 30.02 of the Texas Penal Code is always a crime of

violence, and therefore a sentencing court need not delve into the6 Section 30.01(1) and (2) separately define "habitation" and

"building." The same definitions are also contained in section

28.01(1) and (2).

A 1993 amendment to section 30.02 preserved the distinction

between burglary of "a habitation" and burglary of a building.

Under the revised statute, a burglary is a first degree felony if

the premises are "a habitation" and "any party to the offense

entered the habitation with intent to commit a felony other than

felony theft." T EX

. P ENAL C ODE A NN . § 30.02(d)(2) (Vernon 1994).

8 facts underlying such a conviction. On the other hand, the

burglary of a building does not always constitute a crime of

violence, and thus the sentencing court may need to examine the

facts underlying the conviction. Because Ayala Guadardo was

convicted of burglary of a habitation, we hold that the district

court correctly f ound that he had been convicted of a crime of

violence and properly refused to look into the facts of his

conviction for that purpose.

Finally, we find additional support for o ur holding in the

Texas Penal Code provisions concerning burglary. The Texas

burglary statute in effect since January 1, 1974, and at the time

of Ayala Guadardo's 1990 sentencing distinguished between burglary

of "a habitation" and burglary of "a building" other than a

habitation by classifying the former as a felony of the first

degree and the latter as a felony of the second degree. T E X

. P ENAL

C ODE A NN

. § 30.02(c)-(d) (Vernon 1989). 6 This disparate treatment

of the two offenses is consistent with our holding that the

burglary of a habitation under the Texas Penal Code is per se a

crime of violence under 18 U.S.C. § 16.

Conclusion

For the foregoing reasons, the sentence i mposed by the9

district court is

AFFIRMED.