United States v. Acosta , 214 F. App'x 398 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 12, 2007
Charles R. Fulbruge III
No. 06-40512 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANGEL ACOSTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-1019
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Angel Acosta appeals his guilty-plea conviction and
sentence for being unlawfully present in the United States
following removal. The district court enhanced Acosta’s sentence
based upon its finding that his prior California conviction for
unlawful sexual intercourse with a minor was a conviction for a
crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Acosta
argues that the enhancement was improper because the statute
under which he was convicted sets the legal age for consent to
sexual activity at 18 years of age while the Model Penal Code and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-40512
-2-
the majority of the states set the legal age of consent for
sexual activity at 16 years of age of younger.
Acosta’s prior conviction was under CAL. PENAL CODE ANN.
§ 261.5(c). Under a common sense approach, Acosta’s conviction
was for the enumerated offenses of statutory rape and sexual
abuse of a minor and, accordingly, a crime of violence under
§ 2L1.2(b)(1)(A)(ii). See § 2L1.2, comment. (n.1(b)(iii));
United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir.),
cert. denied, 126 S. Ct. 253 (2005); see also United States v.
Hernandez-Castillo, 449 F.3d 1127, 1131 (10th Cir. 2006); United
States v. Vargas-Garnica, 332 F.3d 471, 474 & n.1 (7th Cir.
2003).
Acosta’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Acosta 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 (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,
126 S. Ct. 298 (2005). Acosta 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.