United States v. Maciel-Padilla

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-41264 F I L E D
Summary Calendar
September 4, 2007
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
CARLOS IGNACIO MACIEL-PADILLA, also known as Carlos Maciel, also
known as Carlos Ignacio Maciel-Padillo
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1595-1
Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Ignacio Maciel-Padilla (Maciel) appeals his conviction and sentence
for illegal reentry following deportation. Maciel argues that the district court
erred by enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based
upon the determination that his 2004 conviction under TEX. PENAL CODE
§ 21.11(a) for attempted indecency with a child is a crime of violence.
*
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should not be published and is not precedent except under the limited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. 06-41264
Sexual abuse of a minor is an enumerated offense which qualifies as a
crime of violence under § 2L1.2(b)(1)(A)(ii). United States v. Zavala-Sustaita,
214 F.3d 601, 604-05 (5th Cir. 2000), held that a violation of § 21.11(a) is sexual
abuse of a minor as that term is used in its “ordinary, contemporary, [and]
common meaning.” As such, the district court did not err in applying the
enhancement under § 2L1.2(b)(1)(A)(ii).
Maciel also challenges the constitutionality of 8 U.S.C. § 1326(b). Maciel’s
constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Maciel 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 basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.
2005); see also Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United
States v. Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007).
Maciel 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.
Accordingly, the judgment of the district court is AFFIRMED.
2