Opinion
No. 10-50058 Conference Calendar.
October 26, 2010.
Joseph H. Gay, Jr., U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Judy Fulmer Madewell, Henry Joseph Bemporad, Federal Public Defender's Office, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 1:09-CR-481-1.
Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
Vicente Cervantes-Segura (Cervantes) appeals the sentence imposed following his conviction of unlawful reentry pursuant to 8 U.S.C. § 1326. Cervantes contends that the district court erred by imposing a 16-level crime of violence enhancement based on his prior Texas conviction of indecency by contact with a child under 17 years of age, a violation of Texas Penal Code § 21.11(a)(1). He argues that the Texas conviction is not within the enumerated offense of sexual abuse of a minor because an offense under § 21.11(a) can be committed against a victim who is 16 years of age. The Government moves for summary affirmance or, in the alternative, for an extension of time to file a brief.
As Cervantes concedes, his argument is foreclosed by circuit precedent. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). Accordingly, the judgment of the district court is AFFIRMED, and the Government's motion for summary affirmance is GRANTED. The alternative request for an extension of time to file a brief is DENIED.