United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005). · Go Syfert
United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005). Cases Citing This Book View Copy Cite
187 citation events (187 in the last 25 years) across 4 distinct courts.
Strongest positive: United States v. Aaron Hernandez (ca5, 2017-06-09)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Aaron Hernandez
5th Cir. · 2017 · confidence medium
See Puckett v. United States, 556 U.S. 129, 135 , 129 S.Ct. 1423 , 173 L.Ed.2d 266 (2009); United States v, Garcia-Mendez, 420 F.3d 454, 455-56 (5th Cir. 2005).
discussed Cited as authority (rule) United States v. Garland Johnson
5th Cir. · 2017 · confidence medium
We rejected this argument under plain error review in United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), and recently followed that holding in analyzing a similar Tennessee statute in United States v. Castro-Alfonso, 841 F.3d 292, 297-98 (5th Cir. 2016).
discussed Cited as authority (rule) United States v. Yahir Lara (2×) also: Cited "see"
6th Cir. · 2014 · confidence medium
Moreover, the government asserted that United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005), foreclosed Lara’s argument because the Fifth Circuit held that a conviction under a Texas statute, which is similar to the Tennessee statute, was a crime of violence within the meaning of § 2L1.2(b)(l)(A)(ii).
discussed Cited as authority (rule) United States v. Evers Harris
5th Cir. · 2014 · confidence medium
We need not decide whether the more stringent plain error standard applies, see, e.g., United States v. Garcia-Mendez, 420 F.3d 454, 455-56 (5th Cir.2005), because the enhancement passes muster under the clearly erroneous standard.
cited Cited as authority (rule) United States v. Joseph Anderson
5th Cir. · 2014 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
cited Cited as authority (rule) United States v. Samuel Conde-Castaneda
5th Cir. · 2014 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
discussed Cited as authority (rule) United States v. Guerrero-Navarro
5th Cir. · 2013 · confidence medium
See United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir.2007) (emphasizing the distinction between dwellings and the structures permitted under Taylor); Murillo-Lopez, 444 F.3d at 342 (expressly rejecting the suggestion that Taylor’s discussion of buildings constrains our interpretation of dwelling); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005) (finding that a Texas offense constitutes burglary of a dwelling, even though the statutory language reaches vehicles and other structures excluded by Taylor). .
discussed Cited as authority (rule) United States v. Armendariz-Perez (2×)
10th Cir. · 2013 · confidence medium
Rather, it appears the only court which has considered Texas Penal Code § 30.02 on categorical grounds is the Fifth Circuit, which has jurisdiction over federal crimes in Texas and determined, based on its examination of the statute alone, that the offense of “burglary of a habitation” under Texas Penal Code § 30.02 is the same as “burglary of a dwelling” for the purpose of applying U.S.S.G. § 2L1.2 for a “crime of violence.” See United States v. Garcia-Mendez 420 F.3d 454, 456-57 (5th Cir.2005).
discussed Cited as authority (rule) United States v. Francisco Hernandez-Salazar
5th Cir. · 2013 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005); United States v. Morales-Mota, 704 F.3d 410, 412-13 (5th Cir.2013) (per curiam) (citing) United States v. Joslin, 487 Fed.Appx. 139, 141-44 (5th Cir.2012). (per curiam).
cited Cited as authority (rule) United States v. Edgar Gonzales
5th Cir. · 2013 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
discussed Cited as authority (rule) United States v. Francisco Morales-Mota
5th Cir. · 2013 · confidence medium
In United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005), we held that burglary of a habitation under § 30.02(a)(1) constitutes burglary of a dwelling and supports an enhancement under § 2L1.2, but we did not address Morales-Mota’s contention.
discussed Cited as authority (rule) United States v. Porras-Rubi
10th Cir. · 2012 · confidence medium
This is because the Fifth Circuit, which has jurisdiction over federal crimes committed in Texas, has determined, using the more narrow categorical approach of viewing only the fact of the conviction and the statutory definition, that convictions, like Mr. Porras-Rubf s, for “burglary of a habitation” under Texas Penal Code § 30.02 are the same as “burglary of a dwelling” for the purpose of applying U.S.S.G. § 2L1.2 for a “crime of violence.” See United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
cited Cited as authority (rule) United States v. Francisco Trevino-Rodriguez
5th Cir. · 2012 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
cited Cited as authority (rule) United States v. Hector Cervantes-Aguilar
5th Cir. · 2012 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir. *258 2005).
discussed Cited as authority (rule) United States v. Ruben Morales-Ordaz
5th Cir. · 2011 · confidence medium
Because a conviction under that subsection constitutes a crime of violence, see United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005), the district court did not err in imposing the 16-level enhancement.
cited Cited as authority (rule) United States v. Hedilberto Guzman
5th Cir. · 2011 · confidence medium
See United States v. Constante, 544 F.3d 584, 585 (5th Cir.2008) (Armed Career Criminal Act case); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
cited Cited as authority (rule) United States v. Jorges Valdes
5th Cir. · 2010 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.2005). 32 .
cited Cited as authority (rule) United States v. Brenes Espinoza-Lazo
5th Cir. · 2010 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
cited Cited as authority (rule) United States v. Cibrian
5th Cir. · 2010 · confidence medium
United States v. Cotton, 535 U.S. 625, 631-32 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002); United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.2005).
cited Cited as authority (rule) United States v. Salvador Almazan-Martinez
5th Cir. · 2010 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005). 9 .
discussed Cited as authority (rule) United States v. Gregorio Cruz-Alonzo
5th Cir. · 2010 · confidence medium
We “find plain error only if: (1) there was error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.2005) (internal quotation marks and citation omitted).
cited Cited as authority (rule) United States v. Loya-Romero
5th Cir. · 2009 · confidence medium
See § 2L1.2, comment. (n.1(B)(iii)); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
discussed Cited as authority (rule) United States v. Davis
5th Cir. · 2009 · confidence medium
See United States v. Murillo-Lopez, 444 F.3d 337, 339-45 (5th Cir.2006) (California statute); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005) (Texas); United States v. Cordoba-Posos, 295 Fed.Appx. 651, 655 (5th Cir.2008) (Illinois).
discussed Cited as authority (rule) United States v. Aguilar-Rocha (2×)
5th Cir. · 2009 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.2005).
cited Cited as authority (rule) United States v. Gonzalez-Bautista
5th Cir. · 2008 · confidence medium
See United States v. Cardenas-Cardenas, 543 F.3d 731, 731-32 (5th Cir. 2008); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005).
cited Cited as authority (rule) United States v. Gonzalez-Gonzalez
5th Cir. · 2008 · confidence medium
See United States v. Cardenas-Cardenas, 548 F.3d 731, 731-32 (5th Cir.2008); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
discussed Cited as authority (rule) United States v. Echavarria-Espinoza
5th Cir. · 2008 · confidence medium
PER CURIAM:* Appealing the Judgment in a Criminal Case, Jose Maria Echavarria- Espinoza raises arguments that are foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005), which held that a conviction under TEX.
discussed Cited as authority (rule) United States v. Echavarria-Espinoza
5th Cir. · 2008 · confidence medium
PER CURIAM: * Appealing the Judgment in a Criminal Case, Jose Maria Echavarria-Espinoza raises arguments that are foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005), which held that a conviction under Tex. Penal Code Ann. § 30.02 (a)(1) for burglary of a habitation is a crime of violence for purposes of U.S.S.G. § 2L1.2 because it is equivalent to the enumerated offense of burglary of a dwelling and United States v. Cardenas- Cardenas, 548 F.3d 731 (5th Cir.2008), which held that James v. United States, 550 U.S. 192 , 127 S.Ct. 1586 , 167 L.Ed.2d 532 (2007) does n…
discussed Cited as authority (rule) United States v. Gonzalez-Cordova
5th Cir. · 2008 · confidence medium
PER CURIAM:* Appealing the Judgment in a Criminal Case, Alfredo Gonzalez-Cordova raises arguments that are foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir. 2005), which held that a Texas conviction for burglary of a habitation was equivalent to burglary of a dwelling and United States v. Gomez-Guerra, 485 F.3d 301 , 303 n.1 (5th Cir.), cert. denied, 128 S. Ct. 156 (2007), which explained that the decision in James v. United States, 127 S. Ct. 1586 (2007) is not dispositive of this issue.
discussed Cited as authority (rule) United States v. Gonzalez-Cordova
5th Cir. · 2008 · confidence medium
PER CURIAM: * Appealing the Judgment in a Criminal Case, Alfredo Gonzalez-Cordova raises arguments that are foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005), which held that a Texas conviction for burglary of a habitation was equivalent to burglary of a dwelling and United States v. Gomez-Guerra, 485 F.3d 301 , 303 n. 1 (5th Cir.), cert. denied, -U.S.-, 128 S.Ct. 156 , 169 L.Ed.2d 106 (2007), which explained that the decision in James v. United States, 550 U.S. 192 , 127 S.Ct. 1586 , 167 L.Ed.2d 532 (2007) is not dispositive of this issue.
discussed Cited as authority (rule) United States v. Osorto-Guevarra
5th Cir. · 2008 · confidence medium
Osorto acknowledges that in United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005), this court held that a Texas burglary of a habitation offense constituted the enumerated offense of burglary of a dwelling for purposes of § 2L1.2.
cited Cited as authority (rule) United States v. Gamez-Silva
5th Cir. · 2008 · confidence medium
See Gomez-Guerra, 485 F.3d at 304 & n. 3; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
discussed Cited as authority (rule) United States v. Davis
5th Cir. · 2008 · confidence medium
Likewise, in Ortega-Gonzaga, we noted that United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.2005), involving a Texas burglary statute, supported the position that both lack of consent and unlawful intent at time of entry are necessary for a burglary conviction to fall under the generic definition.
discussed Cited as authority (rule) United States v. Ramirez-Ramirez (2×) also: Cited "see"
5th Cir. · 2008 · confidence medium
“When these elements are present, this court may exercise its discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Garcia-Mendez, 420 F.3d at 456 (internal quotation marks and citations omitted).
cited Cited as authority (rule) United States v. Linares-Hernandez
5th Cir. · 2008 · confidence medium
See Gomez-Guerra, 485 F.3d at 304 & n. 3; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
discussed Cited as authority (rule) United States v. Guillen-Reyes
5th Cir. · 2008 · confidence medium
The record includes a judicial confession, admitted at the sentencing hearing below without objection, in which Guillen admitted to facts that establish that he committed the offense of burglary of a habitation in a manner that is equivalent to the enumerated offense of “burglary of a dwelling.” See Tex. Penal Code § 30.02(a)(1); United States v. Garciar-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
cited Cited as authority (rule) United States v. Salinas-Lucio
5th Cir. · 2008 · confidence medium
See Gomez-Guerra, 485 F.3d at 304 & n. 3; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005) ; see also United States v. Murillo-Lopez, 444 F.3d 337, 339, 344 (5th Cir. 2006) .
cited Cited as authority (rule) United States v. Aguirre-Cavazos
5th Cir. · 2008 · confidence medium
See Gomez-Guerra, 485 F.3d at 304 & n. 3; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005); see also United States v. Murillo-Lopez, 444 F.3d 337, 339, 344 (5th Cir. 2006).
cited Cited as authority (rule) United States v. Perry
5th Cir. · 2008 · confidence medium
United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.2005).
cited Cited as authority (rule) United States v. Bolanos-Morales
5th Cir. · 2008 · confidence medium
See United States v. Murillo-Lopez, 444 F.3d 337, 339, 344 (5th Cir.2006); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005).
cited Cited as authority (rule) United States v. Rodriguez
5th Cir. · 2008 · confidence medium
See Gomez-Guerra, 485 F.3d at 304 & n. 3; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005); see also United States v. Murillo-Lopez, 444 F.3d 337, 339, 344 (5th Cir. 2006).
cited Cited as authority (rule) United States v. Raygoza-Cedillo
5th Cir. · 2008 · confidence medium
See Gomez-Guerra, 485 F.3d at 304 ; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005) ; see also United States v. Murillo-Lopez, 444 F.3d 337, 339, 344 (5th Cir. 2006) .
cited Cited as authority (rule) United States v. Castillo-Medina
5th Cir. · 2007 · confidence medium
See Gomez-Guerra, 485 F.3d at 304 ; United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005); see also United States v. Murillo-Lopez, 444 F.3d 337, 339, 344 (5th Cir.2006).
discussed Cited as authority (rule) United States v. Chavez
5th Cir. · 2007 · confidence medium
See United States v. Valdez-Maltos, 448 F.3d 910 , 911 (5th Cir.2006), cert. denied, — U.S. —, 127 S.Ct. 265 , 166 L.Ed.2d 205 (2006); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005), cert. denied, 546 U.S. 1199 , 126 S.Ct. 1398 , 164 L.Ed.2d 100 (2006).
discussed Cited as authority (rule) United States v. Garcia-Ortiz
5th Cir. · 2007 · confidence medium
A conviction can qualify as a “crime of violence” in either of two ways: (1) if the conviction is for one of the enumerated offenses listed in the commentary to § 2L1.2, United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.2005); or (2) if the crime of conviction “has as an element the use, attempted use, or threatened use of physical force against the person of *224 another,” id. (quoting U.S.S.G. § 2L1.2, comment n. l(B)(iii)).
discussed Cited as authority (rule) United States v. Maldonado-Garcia
5th Cir. · 2007 · confidence medium
See United States v. ValdezMaltos, 443 F.3d 910, 911 (5th Cir.), cert. denied, — U.S. —, 127 S.Ct. 265 , 166 L.Ed.2d 205 (2006); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 546 U.S. 1199 , 126 S.Ct. 1398 , 164 L.Ed.2d 100 (2006).
discussed Cited as authority (rule) United States v. Tellez-Morales
5th Cir. · 2007 · confidence medium
See United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.), cert. denied, — U.S.-, 127 S.Ct. 265 , 166 L.Ed.2d 205 (2006); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1398 , 164 L.Ed.2d 100 (2006).
discussed Cited as authority (rule) United States v. Arrellano-Barrientos
5th Cir. · 2007 · confidence medium
PER CURIAM: * Appealing the Judgment in a Criminal Case, Marcos David Arrellano-Barrientos raises arguments that are foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1398 , 164 L.Ed.2d 100 (2006), which held that a Texas conviction for burglary of a habitation was equivalent to burglary of a dwelling, and by Almendarez-Torres v. United States, 523 U.S. 224, 235 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326 (b)(2) is a penalty provision and not a separate criminal offense.
discussed Cited as authority (rule) United States v. Mata
5th Cir. · 2007 · signal: cf. · confidence medium
See United States v. Martinez-Cortez, 988 F.2d 1408, 1411-12 (5th Cir.1993); see also United States v. Hornsby, 88 F.3d 336, 339 (5th Cir.1996); cf. United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005).
cited Cited as authority (rule) United States v. Garcia-Reyes
5th Cir. · 2007 · confidence medium
As Garcia-Reyes concedes, his argument is foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 455-57 (5th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1398 , 164 L.Ed.2d 100 (2006).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Maria GARCIA-MENDEZ, Defendant-Appellant
04-41152.
Court of Appeals for the Fifth Circuit.
Aug 8, 2005.
420 F.3d 454
Julia Bowen Stern, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S., Marjorie A. Meyers, Fed. Pub. Def., Houston, TX, for Garcia-Mendez.
Davis, Jones, Garza.
Cited by 157 opinions  |  Published
W.EUGENE DAVIS, Circuit Judge:

In this appeal, we consider whether the district court correctly enhanced appellant’s sentence based on its conclusion that defendant’s prior Texas conviction for second degree burglary of a habitation qualified as a crime of violence under U.S.S.G. § 2L1.1. We conclude that this conviction is equivalent to burglary of a dwelling, an enumerated offense under that guideline, and agree with the district court that the enhancement was proper.

I.

Garcia-Mendez was charged in a single-count indictment with illegal presence in the United States after deportation, in violation of 8 U.S.C. § 1326. He pled guilty under a plea agreement in which the government agreed to recommend the low end of the guideline range, a two-level decrease for acceptance of responsibility and an additional two-level decrease for early disposition.

The Presentence Report (“PSR”) recommended a 16-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) due to Garcia-Mendez’s conviction of a “crime of violence” felony. Garcia-Mendez objected initially to the enhancement on the ground he had not been convicted of burglary of a habitation, but rather, this charge had been dropped down to a lesser offense which would not qualify as a crime of violence. When that objection could not be supported factually, he objected that the 16-level enhancement was excessive. The district court denied the objection. With the promised reductions for acceptance of responsibility and early disposition, Garcia-Mendez’s total offense level was 19. With a criminal history category of II, the guideline range was 33 to 51 months. The district court sentenced Gar-eia-Mendez to 33 months imprisonment. Garcia-Mendez appeals.

II.

The main issue in this appeal is whether Garcia-Mendez’s prior conviction is a[*456] “crime of violence” supporting the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We ordinarily review this determination de novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.2004)(en banc). However, because Garcia-Mendez did not object to the enhancement on the ground raised in this appeal, we review for plain error. [1] United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.2002). This court “find[s] plain error only if: (1) there was error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights. When these elements are present, [this Court] may exercise [its] discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (Internal citations and quotation marks omitted).

Section 2L1.2(b)(1)(A)(ii) provides for a 16-level enhancement to a defendant’s offense level when a defendant was previously deported after a conviction for a crime of violence. A conviction can qualify as a “crime of violence” under this provision in one of two ways. First, it qualifies if the conviction is one of the offenses enumerated as crimes of violence. Second, if the conviction is not for one of the enumerated offenses, it still qualifies if it is “any offense under federal, state or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2, comment n.1(B)(iii). The enumerated crimes include “burglary of a dwelling.”

Garcia-Mendez was previously convicted of burglary of a habitation in violation of Texas law. The Texas statute states that a person commits burglary if he enters a building closed to the public, or a habitation, without the consent of the owner, with the intent to commit a felony, theft, or an assault. Tex. Penal Code § 30.02(a)(1) (2000). Habitation is defined as “a structure or vehicle that is adapted for overnight accommodation of persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle; and (B) each structure appurtenant to or connected with the structure or vehicle.” Tex. Penal Code § 30.01(1)(2000).

Garcia-Mendez argues that his offense of burglary of a habitation does not fit within the enumerated offense of burglary of a dwelling because the definition of a “habitation” under the Texas offense, which includes “each structure appurtenant to or connected with the structure or vehicle,” is broader than the definition of a “dwelling” as is commonly understood in a criminal law context. [2] The government argues that burglary of a habitation is equivalent to the enumerated offense of burglary of a dwelling, citing case law from this circuit.

In United States v. Hornsby, 88 F.3d 336, 339 (5th Cir.1996), this court found that a conviction for burglary of a habitation qualified as a crime of violence un[*457] der U.S.S.G. § 4B1.2(1)(ii). Although the definition of “crime of violence” in § 4B1.1 is slightly different from the definition of the same term in § 2L1.2, both guideline sections list “burglary of a dwelling” as an enumerated crime of violence. In Horns-by, we said that: “... burglary of a habitation is considered a crime of violence.” We read this as a conclusion that the crime “burglary of a habitation” is equivalent to the enumerated offense “burglary of a dwelling.” This conclusion that the prior conviction for burglary of a habitation is an enumerated offense makes irrelevant the difference in the definition of crime of violence in the two guideline sections. The district court therefore did not commit plain error in concluding that Garcia-Mendez’s prior conviction was a crime of violence under § 2L1.1.

III.

Finally, Garcia argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) should be interpreted to overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). As Garcia concedes, this last argument is precluded by existing circuit precedent. See, e.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

rv.

For the foregoing reasons, Garcia-Mendez’s sentence is

AFFIRMED.

1

. The government suggests that Garcia-Mendez waived this issue by withdrawing his objection that he had not been convicted of the offense burglary of a habitation. We disagree. This is not a situation in which the appellant is attempting to raise the exact objection previously withdrawn at sentencing. See United States v. Musquiz, 45 F.3d 927, 931 (5th Cir.1995). The issue raised in this appeal, that his prior conviction does not fit within the definition of a "crime of violence” under the applicable guideline provision, is legally distinct from his prior objection questioning what crime he had previously been convicted of.

2

. Garcia-Mendez's indictment does not indicate what type of habitation he was accused of entering. He was indicted for "unlawfully, with intent to commit SEXUAL ASSAULT, enter a habitation owned by ISABELLE NAVA.”