Opinion
No. 06-41273 Summary Calendar.
May 25, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 5:06-CR-442-ALL.
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
German Landeros-Reyes (Landeros) appeals from the 23-month sentence imposed following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. He argues for the first time on appeal that § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He also argues for the first time that his prior misdemeanor assault convictions were not crimes of violence for purposes of enhancement under U.S.S.G. § 2L1.2(b)(1)(E).
Landeros's challenge to § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Landeros contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi 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. 2005). Landeros 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.
Landeros's challenge to the district court's guidelines calculations is reviewed for plain error only. See United States v. Villegas, 404 F.3d 355, 358 (2005). The four-level enhancement § 2L1.2(b)(1)(E) is appropriate where the defendant has three or more misdemeanor convictions for crimes of violence. The district court relied on Landeros's misdemeanor convictions for assault under Texas law to justify the enhancement. Subsequent to sentencing, this court held that the crime of misdemeanor assault under Texas law, even when committed by causing bodily injury, is not a crime of violence under the Guidelines. See United States v. Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006); United States v. Fierro-Reyna, 466 F.3d 324, 326 (5th Cir. 2006). Therefore, as the Government concedes, the district court plainly erred by applying the enhancement. See United States v. Martinez-Vega, 471 F.3d 559, 561 (5th Cir. 2006). Contrary to the Government's view, this error affected Landeros's substantial rights and affected the fairness and integrity of the judicial proceedings. See Garza-Lopez, 410 F.3d at 275; United States v. Gonzales, 484 F.3d 712, 716-17 (5th Cir. 2007). Accordingly, Landeros's sentence is VACATED, and the case is REMANDED for resentencing.