DocketNumber: 08-41071
Judges: Higginbotham, Davis, Clement
Filed Date: 8/18/2009
Status: Non-Precedential
Modified Date: 11/5/2024
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 18, 2009 No. 08-41071 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CELESTINO RIVERA-CASTANEDA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:08-CR-383-ALL Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* Celestino Rivera-Castaneda (Rivera) appeals the 70-month sentence imposed following his guilty plea to illegal reentry following a previous deportation. He contends that the district court reversibly erred in applying the U.S.S.G. § 2L1.2 enhancement to his sentence based upon his prior Texas conviction for indecency with a child-contact, a violation of Texas Penal Code § 21.11(a)(1). He asserts that a violation of § 21.11(a)(1) does not constitute the * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. No. 08-41071 enumerated offense of sexual abuse of a minor for purposes of the § 2L1.2 enhancement. As Rivera acknowledges, this court has already addressed the issue of whether a prior Texas conviction for indecency with a child, a violation of § 21.11(a)(1), constitutes sexual abuse of a minor for purposes of § 2L1.2(b)(1)(A)(ii). See United States v. Ayala,542 F.3d 494
, 495 (5th Cir. 2008), cert. denied,129 S. Ct. 1388
(2009); United States v. Najera-Najera,519 F.3d 509
, 511-12 (5th Cir.), cert. denied,129 S. Ct. 139
(2008); United States v. Zavala-Sustaita,214 F.3d 601
, 604 (5th Cir. 2000). Because Rivera’s only argument on appeal is foreclosed by this court’s precedent, the judgment of the district court is AFFIRMED. 2