Opinion
No. 06-41306 Summary Calendar.
April 13, 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. 1:06-CR-347-ALL.
Before REAVLEY, WIENER and DENNIS, Circuit Judges.
Lazaro Ramirez-Castro was convicted after pleading guilty to illegal reentry following a prior deportation after a conviction of an aggravated felony. He now appeals that conviction and his 46-month sentence.
Ramirez-Castro argues that his previous Florida conviction of aggravated battery with a deadly weapon is not a crime of violence because it is not an offense enumerated under U.S.S.G. § 2L1.2 comment. n. 1(B)(iii) and it does not have as an element the use, attempted use, or threatened use of physical force against the person of another. Ramirez-Castro's conviction for aggravated battery using a deadly weapon under FLA. STAT. ANN. § 784.045(1)(a)(2) "has as an element at least a threatened use of force" and thus was properly characterized by the district court as a crime of violence. See United States v. Dominguez, 479 F.3d 345, 346-50 (5th Cir. 2007).
Ramirez-Castro 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. Ramirez-Castro'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. Garzar-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Ramirez-Castro 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.