United States v. Arce-Gonzalez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006 Charles R. Fulbruge III Clerk No. 05-40795 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

HIPOLITO ARCE-GONZALEZ, also known as Jose Luis Pulido-DeLeon, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-936-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Hipolito Arce-Gonzalez (Arce) appeals his conviction and

sentence following his guilty plea to being illegally present in

this country following removal. Arce argues that the district

court erred by finding that his prior Texas felony conviction for

burglary of a habitation was a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). In United States v. Garcia-Mendez, 420

F.3d 454, 456-57 (5th Cir. 2005), petition for cert. filed (Dec.

15, 2005) (No. 04-41152), this court held that a prior Texas * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 05-40795 -2-

conviction for burglary of a habitation was a prior conviction

for a crime of violence under § 2L1.2(b)(1)(A)(ii) because it was

equivalent to the enumerated offense of burglary of a dwelling.

Arce asserts that Garcia-Mendez is inapposite to the present case

because the issue in that case was reviewed for plain error and

because this court did not apply the categorical analysis

mandated by Taylor v. United States, 495 U.S. 575 (1990).

Although review of this issue in Garcia-Mendez was for plain

error, this court clearly held that a Texas conviction for

burglary of a habitation was a conviction for a crime of violence

under U.S.S.G. § 2L1.2(b)(1)(A)(ii). See Garcia-Mendez, 420 F.3d

at 456-57 . Arce’s argument that this court did not properly

apply the categorical analysis of Taylor in Garcia-Mendez is

tantamount to arguing that Garcia-Mendez was incorrectly decided,

and is unavailing. Garcia-Mendez resolved the issue raised in

this case, and one panel of this court may not ignore the

precedent set by a prior panel. United States v. Ruiz, 180 F.3d

675, 676 (5th Cir. 1999).

Arce’s constitutional challenge to 8 U.S.C. § 1326 (b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Arce contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding. No. 05-40795 -3-

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005). Arce 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.

AFFIRMED.