United States v. Rolando Ramirez

507 F. App'x 353

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 10, 2013
• Docket: 12-10133
• Status: Unpublished

Opinion

PER CURIAM: *

Rolando Ramirez is appealing the 180-month sentence imposed following his conviction for possession of a firearm subsequent to a felony conviction.

Ramirez was sentenced under the provisions of the Armed Career Criminal Act (ACCA) because he had four prior convictions for burglary , of a habitation pursuant to Tex. Penal Code § 30.02(a)(3), which the district court determined were violent felo nies under the ACCA’s residual clause. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(a).

Ramirez’s sole argument on appeal is that the issue of whether his prior convictions were violent felonies under the ACCA was foreclosed by United States v. Constante, 544 F.3d 584 (5th Cir.2008). In Constante, we did not address whether burglary under § 30.02(a)(3) was a violent felony under the ACCA’s residual clause. Thus, the issue was not foreclosed by Constante. See, e.g., Matter of Swift, 129 F.3d 792, 796 n. 18 (5th Cir.1997) (stating that we are not bound by a previous decision if that decision did not consider an issue raised in the subsequent case).

In light of the foregoing, Ramirez’s sentence is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.