Summary
holding that an assault under § 22.01 and § 22.01(b) does not constitute a crime of violence
Summary of this case from United States v. FloresOpinion
No. 05-11120 Summary Calendar.
January 19, 2007.
Denise B. Williams, U.S. Attorney's Office Northern District of Texas, Lubbock, TX, for Plaintiff-Appellee.
Helen Miller Liggett, Assistant Federal Public Defender, Federal Public Defender's Office Northern District of Texas, Lubbock, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, (6:05-CR-17-ALL).
Before SMITH, WIENER, and OWEN, Circuit Judges.
Defendant-Appellant Alejandro Carrillo-Soria appeals his 2005 conviction and sentence for illegal reentry after deportation. Carrillo-Soria contends that the district court erred by applying a 16-level increase to his offense level, based on its finding that his 2002 state felony conviction for assault was a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Carrillo-Soria's assault offense was committed under TEX. PENAL CODE ANN. § 22.01(a)(1) and (b)(2) (Vernon 2003), which does not set forth a crime of violence under § 2L1.2(b)(1)(A)(ii). See § 2L1.2, comment. (n. 1(B)(iii)) (reflecting that simple assault is not an enumerated offense constituting a "crime of violence"); United States v. Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006) (determining that use of force is not an element of § 22.01(a)(1)); see also § 22.01 (b)(2) (lacking use of force as an element). As this error is prejudicial, Carrillo-Soria's sentence is vacated and his case remanded for resentencing in accordance with this opinion. See Villegas-Hernandez, 468 F.3d at 885.
Carrillo-Soria also challenges the constitutionality of 8 U.S.C. § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. Carrillo-Soria's constitutional challenge 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.), cert. denied, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Carrillo-Soria 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.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.