Opinion
No. 05-40919 Conference Calendar.
April 17, 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, H. Michael Sokolow, 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. 2:05-CR-106-ALL.
Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
Wilmer Omar Valle appeals from a guilty-plea conviction for illegal reentry. For the first time on appeal, Valle argues that the district court erred in assigning a 16-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a prior California conviction for assault with a deadly weapon. Although Valle arguably waived the issue, out of an abundance of caution we review for plain error. See United States v. Fernandez-Cusco, 447 P.3d 382, 384 (5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 194, 166 L.Ed.2d 158 (2006).
In United States v. Sanchez-Ruedas, 452 F.3d 409, 412-14, (5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 315, 166 L.Ed.2d 237 (2006), we examined the identical California statute at issue in Valle's case and held that the California statute was sufficiently similar to the generic contemporary definition of aggravated assault to qualify as an enumerated offense of a crime of violence. The district court thus did not plainly err in assigning a 16-level increase for Valle's prior conviction for assault with a deadly weapon. See id.
Valle challenges 8 U.S.C. § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Valle'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 Valle 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.), cert. denied, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Valle 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.