United States v. Carrillo-Soria ( 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 19, 2007
Charles R. Fulbruge III
Clerk
No. 05-11120
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO CARRILLO-SORIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(6:05-CR-17-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Alejandro Carrillo-Soria appeals his 2005
conviction and sentence for illegal reentry after deportation.
Carrillo-Soria contends that the district court erred by applying
a 16-level increase to his offense level, based on its finding that
his 2002 state felony conviction for assault was a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Carrillo-Soria’s
assault offense was committed under TEX. PENAL CODE ANN. § 22.01(a)(1)
and (b)(2) (Vernon 2003), which does not set forth a crime of
*
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this opinion should not be published and is not precedent except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.
violence under § 2L1.2(b)(1)(A)(ii). See § 2L1.2, comment.
(n.1(B)(iii)) (reflecting that simple assault is not an enumerated
offense constituting a “crime of violence”); United States v.
Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006)(determining
that use of force is not an element of § 22.01(a)(1)); see also
§ 22.01(b)(2)(lacking use of force as an element). As this error
is prejudicial, Carrillo-Soria’s sentence is vacated and his case
remanded for resentencing in accordance with this opinion. See
Villegas-Hernandez, 468 F.3d at 885.
Carrillo-Soria 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. Carrillo-Soria’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (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 (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). Carrillo-Soria
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.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
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