United States v. Stewart

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED MARCH 29, 2007 IN THE UNITED STATES COURT OF APPEALS November 17, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 06-40537 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROHAN GEORGE STEWART,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-712-ALL --------------------

Before DAVIS, BARKSDALE, AND BENAVIDES, Circuit Judges.

PER CURIAM:*

Rohan George Stewart appeals his guilty-plea conviction and

sentence for attempted illegal reentry. See 8 U.S.C. § 1326. He

argues that the district court erred in assessing a 16-level

“crime of violence” enhancement pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based on a prior Florida conviction for

burglary of a dwelling. He argues that the Florida statute is

over broad because it includes “curtilage” in the definition of

“dwelling.” See FLA. STAT. §§ 810.02, 810.011(2).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40537 -2-

Stewart’s argument is without merit. The charging document

for one of the burglaries on which the enhancement was based

indicates that he burglarized an apartment. An apartment is

designed for human habitation and is therefore within the meaning

of a “dwelling” for purposes of “burglary of a dwelling” as used

in the Guidelines. United States v. Murillo-Lopez, 444 F.3d 337,

345 (5th Cir. 2006); § 2L1.2(b)(1)(A)(ii), comment.

(n.1(B)(iii)); FLA. STAT. § 810.011(2).

Stewart’s challenge to the constitutionality of 8 U.S.C.

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998). Although Stewart 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).

AFFIRMED.