Opinion
No. 06-40307, Conference Calendar.
June 19, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Timothy William Crooks, Assistant Federal Public Defender, 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. 5:05-CR-1805-ALL.
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
Mario Pena-Lopez appeals his guilty-plea conviction and sentence for illegal reentry, in violation of 8 U.S.C. § 1326. Pena-Lopez first argues that the district court erred in assessing a 16-level "crime of violence" enhancement under U.S.S.G. § 2L1.2 based on his prior felony conviction for sexual assault of a child under TEX. PENAL CODE § 22.011(a)(2). According to Pena-Lopez, such an offense does not constitute a "crime of violence" within the meaning of § 2L1.2(b)(1)(A). As Pena-Lopez concedes, we review this argument for plain error. See United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).
The district court committed no error, plain or otherwise. A violation of § 22.011(a)(2) "meet[s] a common-sense as well as a generic, contemporary definition of statutory rape." United States v. Alvarado-Hernandez, 465 F.3d 188, 189-90 (5th Cir. 2006). It is thus the equivalent of an enumerated offense that triggers the § 2L1.2 enhancement.
Pena-Lopez also challenges the constitutionality of § 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. His 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. 2005). Pena-Lopez 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.