United States v. Franco-Islas , 209 F. App'x 364 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-20927
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL FRANCO-ISLAS, also known as Ismael
Islas Franco, also known Ismael Oslas,
also known as Hugo Franco,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-260-ALL
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Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Ismael Franco-Islas appeals his conviction for unlawful
presence in the United States after deportation following an
aggravated felony conviction and his sentence.
He argues that his 1995 conviction under California Penal
Code § 245(a)(1) does not constitute an “aggravated assault,” and
hence, an enumerated “crime of violence” under U.S.S.G. §
2L1.2(b)(1)(A)(ii). This court recently held that California
*
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this opinion should not be published and is not precedent except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. 05-40739
-2-
Penal Code § 245(a)(1) qualifies as an “aggravated assault”
within the meaning of the comment to § 2L1.2, and thus it is an
enumerated offense. United States v. Sanchez-Ruedas, 452 F.3d
409, 412-14 (5th Cir 2006); United States v. Robles-Enriquez, No.
05-40388, 2006 WL 2347324, at *1 (5th Cir. Aug. 11, 2006). We
are bound by precedent, and therefore, the enhancement must be
upheld.
Franco-Islas also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). Franco-Islas’ constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Franco-Islas 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).
Franco-Islas 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.
CONVICTION AND JUDGMENT AFFIRMED.