United States v. Bautista-Sanchez , 116 F. App'x 512 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 16, 2004
Charles R. Fulbruge III
Clerk
No. 03-41526
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAULINO BAUTISTA-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:02-CR-28-ALL
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Paulino Bautista-Sanchez (Bautista) appeals the sentence
imposed following his guilty-plea conviction of being found in
the United States after deportation in violation of 8 U.S.C.
§ 1326. He argues that his Texas felony conviction for indecency
with a child was not a “crime of violence” warranting the
16-level increase under United States Sentencing Guidelines
§ 2L1.2. The Sentencing Guidelines provide for a 16-level
increase when the defendant has a prior felony conviction for a
*
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this opinion should not be published and is not precedent except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. 03-41526
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“crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2002).
A crime of violence is defined to include “sexual abuse of a
minor.” Id. at comment. n.1(B)(ii)(II). The Texas crime of
indecency with a child constitutes “sexual abuse of a minor.”
United States v. Zavala-Sustaita, 214 F.3d 601, 607 (5th Cir.
2000); United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th
Cir.), cert. denied, 537 U.S. 1095 (2002). Bautista’s 16-level
increase was warranted by his prior conviction for indecency with
a child.
Bautista also contends that the district court erred at
sentencing by assigning him criminal history points for his prior
driving while intoxicated (DWI) conviction. Bautista contests
his signed waiver of counsel and contends that his DWI conviction
was uncounseled and, thus, in violation of the Sixth Amendment.
After reviewing the briefs, the record, and applicable
authorities, we hold that there is no constitutional violation
because Bautista validly waived his right to counsel in
connection with his 2002 DWI conviction proceedings. See Scott
v. Illinois, 440 U.S. 367, 373-74 (1979). The district court did
not err in assessing criminal history points for Bautista’s prior
uncounseled misdemeanor DWI conviction.
Bautista further asserts that the “aggravated felony”
provision of 8 U.S.C. § 1326(b)(2) is unconstitutional. As
Bautista concedes, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
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he seeks to preserve the issue for possible Supreme Court review
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). This
court must follow Almendarez-Torres “unless and until the Supreme
Court itself determines to overrule it.” United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Accordingly, the district court’s judgment of conviction and
sentence is AFFIRMED.