United States v. Israel Perez-Jimenez , 671 F. App'x 938 ( 2016 )

Case: 16-10135 Document: 00513808316 Page: 1 Date Filed: 12/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-10135 FILED
Summary Calendar December 21, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ISRAEL PEREZ-JIMENEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CR-269-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Israel Perez-Jimenez pleaded guilty to illegal reentry and was sentenced
to 30 months of imprisonment. The advisory guidelines calculations included
an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) for a prior,
aggravated felony conviction based on Perez-Jimenez’s Texas convictions for
burglary of a building and burglary of a vehicle. Perez-Jimenez now argues
that the district court erred by characterizing his offenses as aggravated
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-10135 Document: 00513808316 Page: 2 Date Filed: 12/21/2016
No. 16-10135
felonies under 8 U.S.C. § 1101(a)(43)(F) for the purposes of convicting and
sentencing him under 8 U.S.C. § 1326(b)(2). Relying on Johnson v. United
States, 135 S. Ct. 2551 (2015), Perez-Jimenez argues that the definition of a
crime of violence in 18 U.S.C. § 16(b), which is incorporated by reference into
§ 1101(a)(43)(F)’s definition of an aggravated felony, is unconstitutionally
vague on its face. Perez-Jimenez’s arguments are foreclosed by our recent
decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016)
(en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259).
Additionally, Perez-Jimenez challenges his enhanced sentence under
§ 1326(b), arguing that because the indictment did not allege a prior conviction,
his sentence exceeds the statutory maximum penalty for a conviction under
§ 1326(a). He challenges the validity of Almendarez-Torres v. United States,
523 U.S. 224 (1998), in light of Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Alleyne v. United States, 133 S. Ct. 2151 (2013). Perez-Jimenez correctly
concedes that his argument is foreclosed.
The judgment of the district court is AFFIRMED.
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