United States v. Solis-Herrera

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-41736
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSHUA JOB SOLIS-HERRERA
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas, McAllen
USDC No. 7:05-CR-389-ALL
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Defendant-appellant Joshua Job Solis-Herrera (“Solis”)
appeals the sentence imposed upon his conviction for illegal
reentry. Solis asserts that the district court erred in
enhancing his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based
on a Texas prior conviction for robbery. The parties disagree
whether the proper standard of review is plain error or de novo.
*
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that this opinion should not be published and is not precedent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.
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We conclude that the result is the same under either standard of
review.
Under § 2L1.2(b)(1)(A)(ii), a defendant’s base offense level
is increased by sixteen levels if he was previously deported
after being convicted of a crime of violence. The Commentary to
U.S.S.G. § 2L1.2 states that a prior conviction may qualify as a
crime of violence if (1) it is one of the predicate offenses
listed in that section or (2) it has as an element of the crime
the use, attempted use, or threatened use of physical force
against the person of another. U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii). Robbery is an offense expressly listed as a crime
of violence in the Commentary to § 2L1.2. § 2L1.2, cmt.
n.1(b)(iii). Recently in United States v. Santiesteban-
Hernandez, No. 05-50399, (5th Cir. filed Oct. 31, 2006), we held
that the Texas robbery statute, § 29.02, qualifies as “robbery”
for the purposes of U.S.S.G. § 2L1.2. The arguments raised by
Solis are almost identical to the arguments made in Santiesteban-
Hernandez and thus foreclosed. See id.
Solis also contends that 8 U.S.C. § 1326(b) is
unconstitutional. He acknowledges that this argument is
foreclosed by United States v. Almendarez-Torres, 523 U.S. 224,
235 (1998), but raises it to preserve it for further review. We
have “repeatedly rejected arguments like the one made by [Solis]
and . . . held that Almendarez-Torres remains binding despite
Apprendi [v. New Jersey, 530 U.S. 466 (2000).]” United States v.
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Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Solis’s guilty-
plea conviction and the sentence imposed are AFFIRMED.
3