United States v. Flores-Rosales , 260 F. App'x 729 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 28, 2007
No. 07-50828
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EDUARDO FLORES-ROSALES, also known as Andres Franco-Valereano
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1717-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Eduardo Flores-Rosales (Flores) appeals the sentence imposed following
his guilty-plea conviction for illegal reentry into the United States following
removal. Flores argues that the district court erred by applying a 16-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his being removed
following a conviction for a crime of violence. He maintains that his prior
Arizona conviction for aggravated assault was not a conviction for a crime of
violence because the Arizona statute is broader than the generic definition 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should not be published and is not precedent except under the limited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.
No. 07-50828
aggravated assault and because the statute does not require the use of force as
an element of the offense. He further maintains that the sentencing order
produced by the Government was not sufficient evidence of his prior conviction.
As Flores did not produce rebuttal evidence, the sentencing order was
sufficient evidence of his prior conviction. See United States v. Neri-Hernandes,
504 F.3d 587, 590-92 (5th Cir. 2007). That order showed that Flores was
convicted of violating ARIZ. REV. STAT. ANN. §§ 13-1204(A)(2) and 13-1203(A)(2).
While the Arizona statute is slightly broader than the offense of aggravated
assault in the Model Penal Code, these differences are minor, and a conviction
under that statute is a conviction for the offense of aggravated assault as
enumerated in § 2L1.2, comment. (n.1(B)(iii)). See United States v. Mungia-
Portillo, 484 F.3d 813, 815-17 (5th Cir.), cert denied, 128 S. Ct. 320 (2007);
United States v. Guillen-Alvarez, 489 F.3d 197, 198-201 (5th Cir.), cert. denied,
128 S. Ct. 418 (2007).
Flores argues that his sentence was unreasonable because the district
court employed impermissible double counting and, thus, improperly calculated
his guidelines range by increasing both his offense level and criminal history
points based on the same prior aggravated assault conviction. Citing United
States v. Henry, 288 F.3d 657 (5th Cir. 2002), Flores further contends that his
criminal history should not have been increased based on his prior aggravated
assault conviction because it was an element of the illegal reentry offense.
The Guidelines do not prohibit double counting. See § 2L1.2, comment.
(n.6); see also United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996). This
court has approved of double counting under similar circumstances involving
U.S.S.G. § 2K1.2. See United States v. Hawkins, 69 F.3d 11, 14-15 (5th Cir.
1995). Flores’s reliance on Henry is misplaced as Henry is distinguishable from
the instant case. See Henry, 288 F.3d at 659, 665. Accordingly, Flores has not
shown that the district court erroneously calculated the guideline range of
imprisonment.
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No. 07-50828
When the district court imposes a sentence within a properly calculated
guidelines range, little explanation is required, and this court will infer that the
district court considered all of the factors for a fair sentence set forth in the
Guidelines. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Flores
has not demonstrated that the sentence imposed was unreasonable.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Flores 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. This court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
AFFIRMED.
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