Opinion
No. 06-51190, Summary Calendar.
June 25, 2007.
Mara A. Blatt, Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Henry Joseph Bemporad, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:06-CR-434-ALL.
Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.
Ricardo Avila-Nava appeals the 46 month sentence imposed in August 2006 by the district court following his guilty-plea conviction of illegal reentry following deportation. He argues that the district court erred in increasing his offense level under the Sentencing Guidelines based on a determination that his prior Michigan conviction for attempted felonious assault with a knife (Mich. Compiled Laws § 750.82) was a crime of violence under U.S.S.G. § 2L1.2 (producing an otherwise unchallenged advisory guideline sentencing range of 46-57 months).
Avila-Nava acknowledges that we determined in United States v. Saucedo-Roman, 202 Fed.Appx. 723 (2006), that the Michigan offense of felonious assault is a crime of violence because it falls within the definition of the enumerated offense of aggravated assault. He notes that Saucedo-Roman is nonprecedential and argues that it was wrongly decided. Saucedo-Roman is consistent with our published opinion in United States v. Sanchez-Ruedas, 452 F.3d 409 (5th Cir.), cert. denied, ___ U.S. ____, 127 S.Ct. 315, 166 L.Ed.2d 237 (2006). Moreover, "[a]n attempt to commit an offense that qualifies as a crime of violence is also a crime of violence." United States v. Tzep-Mejia, 461 F.3d 522, 525 n. 4 (5th Cir. 2006). The district court did not err by adjusting Avila-Nava's offense level.
See also, e.g., United States v. Mungia-Portillo, 484 F.3d 813 (5th Cir. 2007).
Avila-Nava's constitutional challenge to 8 U.S.C. § 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 he 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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. 2005). Avila-Nava 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.
AFFIRMED.