United States v. Valle , 224 F. App'x 440 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 05-40919
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILMER OMAR VALLE, also known as Melbin Danilo Landaverde,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-106-ALL
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
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,
*
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this opinion should not be published and is not precedent except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. 05-40919
-2-
447 F.3d 382, 384 (5th Cir.), cert. denied, 127 S. Ct. 194
(2006).
In United States v. Sanchez-Ruedas, 452 F.3d 409, 412-14,
(5th Cir.), cert denied, 127 S. Ct. 315 (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 (2000). Valle’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (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,
126 S. Ct. 298 (2005). Valle properly concedes that his argument
is foreclosed in light of Almendarez-Torres and circuit
No. 05-40919
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precedent, but he raises it here to preserve it for further
review.
AFFIRMED.