United States v. Hernandez-Garcia

* 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this opinion should not be published and is not precedent except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
F I L E D
December 14, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40648
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME HERNANDEZ-GARCIA, also known as Pablo Turbiates-Furtunas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1083-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Jaime Hernandez-Garcia appeals his guilty-plea conviction
and sentence for being illegally present in the United States
following removal. Hernandez 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), this court held that a
prior Texas conviction for burglary of a habitation was a prior

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conviction for a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because it was equivalent to the enumerated
offense of burglary of a dwelling. Hernandez asserts that
Garcia-Mendez is inapplicable 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). While the 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 420 F.3d at 456-57. Hernandez’s
argument that this court did not properly apply the categorical
analysis of Taylor in Garcia-Mendez is nothing more than an
argument that Garcia-Mendez was incorrectly decided, and is
unavailing. See Burge v. Parish of St. Tammany, 187 F.3d 452,
466 (5th Cir. 1999) (applying prior panel rule).
Hernandez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Hernandez 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.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Hernandez properly concedes

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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.

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