United States v. Avila-Nava , 237 F. App'x 925 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-51190
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO AVILA-NAVA, also known
as Miguel Lopez-Cardenas,
also known as Ricardo Madrigal
Avila-Nava,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-434-ALL
Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Ricardo Avila-Nava appeals the 46 month sentence imposed in
August 2006 by the district court following his guilty-plea
conviction of illegal reentry following deportation. He argues
that the district court erred in increasing his offense level under
the Sentencing Guidelines based on a determination that his prior
*
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opinion should not be published and is not precedent except under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.
Michigan conviction for attempted felonious assault with a knife
(Mich. Compiled Laws § 750.82) was a crime of violence under
U.S.S.G. § 2L1.2 (producing an otherwise unchallenged advisory
guideline sentencing range of 46-57 months).
Avila-Nava acknowledges that we determined in United States v.
Saucedo-Roman, 202 F. App’x 723 (2006), that the Michigan offense
of felonious assault is a crime of violence because it falls within
the definition of the enumerated offense of aggravated assault. He
notes that Saucedo-Roman is nonprecedential and argues that it was
wrongly decided. Saucedo-Roman is consistent with our published
opinion in United States v. Sanchez-Ruedas, 452 F.3d. 409 (5th
Cir.), cert. denied, 127 S.Ct. 315 (2006).1 Moreover, “[a]n
attempt to commit an offense that qualifies as a crime of violence
is also a crime of violence.” United States v. Tzep-Mejia, 461
F.3d 522, 525 n.4 (5th Cir. 2006). The district court did not err
by adjusting Avila-Nava’s offense level.
Avila-Nava’s constitutional challenge to 8 U.S.C. § 1326(b) 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
1
See also, e.g., United States v. Mungia-Portillo, ___ F.3d
___ (slip op. 2458, #06-40273, 5th Cir., April 17, 2007).
2
basis that Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Avila-Nava
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.
3