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. 05-40708 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE EDUARDO HERNANDEZ-BELTRAN, also known as Francisco Javier Beltran,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-1060-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Eduardo Hernandez-Beltran (Hernandez) 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,

(5th Cir. 2005), petition for cert.

filed (Dec. 15, 2005)(No. 05-8542), this court held that a prior

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40708 -2-

Texas 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. 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,

(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 § 2L1.2(b)(1)(A)(ii). See Garcia-Mendez,

. 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,

(5th Cir. 1999) (applying prior

panel rule).

Hernandez’s constitutional challenge to

is

foreclosed by Almendarez-Torres v. United States,

(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,

(2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez,

(5th Cir.), No. 05-40708 -3-

cert. denied,

(2005). Hernandez 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.