United States v. Diaz-Vela , 224 F. App'x 381 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 10, 2007
IN THE UNITED STATES COURT OF APPEALS April 4, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40939
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER DIAZ-VELA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-28-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Francisco Javier Diaz-Vela appeals his guilty-plea conviction
and sentence for being unlawfully present in the United States
following removal. The district court enhanced Diaz-Vela’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).
Diaz-Vela argues that the enhancement was improper because the
statute under which he was convicted sets the legal age for consent
*
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this opinion should not be published and is not precedent except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. 06-40939
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to sexual activity at 18 years of age while the Model Penal Code
and the majority of the states set the legal age of consent for
sexual activity at 16 years of age of younger.
Diaz-Vela’s prior conviction was under CAL. PENAL CODE ANN.
§ 261.5. Under a common sense approach, Diaz-Vela’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), cert. denied, 127
S. Ct. 936 (2007); United States v. Vargas-Garnica, 332 F.3d 471,
474 & n.1 (7th Cir. 2003).
Diaz-Vela also argues that the felony and aggravated felony
provisions contained in 8 U.S.C. § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). This
constitutional argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Diaz-Vela
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,
126 S. Ct. 298 (2005). Diaz-Vela properly concedes that his
No. 06-40939
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argument is foreclosed in light of Almendarez-Torres and circuit
precedent, but he raises it here to preserve it for further review.
AFFIRMED.