IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41381 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIKE ROBERT SALINAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-98-CV-233 USDC No. C-96-CR-114-1 --------------------

October 20, 1999

Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.

PER CURIAM:*

Mike Robert Salinas, a federal prisoner (# 68915-079),

appeals from the district court’s denial of his

motion to vacate his federal bank-robbery sentence. The district

court granted Salinas a certificate of appealability on the issue

whether “he was denied his constitutional right to effective

assistance of counsel on the grounds that his attorney failed to

adequately investigate his prior state court convictions.” Two

of these convictions were deemed “crimes of violence” under

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-41381 -2-

U.S.S.G. § 4B1.2(a) and were used to deem Salinas a “career

offender” and enhance his sentence under § 4B1.1.

Specifically, Salinas is contending that his trial attorney

should have challenged the court’s use of a 1987 guilty-plea

conviction for attempted burglary; he asserts that the 1987

conviction was not for attempted burglary of a “dwelling” but of

a vacant apartment. Because Salinas’ Presentence Report

indicated that he had attempted to burglarize “a habitation owned

by” a particular person, and because there is no indication in

the record that Salinas ever informed his attorney or the court

that such “habitation” was vacant, the attorney did not perform

deficiently by failing to argue that such offense was not a

“crime of violence” for “career offender” purposes. See

Strickland v. Washington,

(1984); cf. United

States v. Jackson,

(5th Cir. 1994) (burglary

of house that had been vacant for seven years was not burglary of

a “dwelling” and was thus not a “crime of violence” for “career

offender” purposes). Accordingly, Salinas has not shown that his

attorney performed ineffectively, and the district court’s denial

of his § 2255 motion is AFFIRMED.

AFFIRMED.