United States v. Favela-Masuca

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 12, 2007
Charles R. Fulbruge III
Clerk
No. 06-40607
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL FAVELA-MASUCA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2287-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Raul Favela-Masuca appeals his conviction and sentence for
illegal reentry after having been deported, in violation of 8
U.S.C. § 1326. Favela-Masuca contends the district court erred
by applying an eight-level increase to his offense level,
pursuant to U.S.S.G. § 2L1.2(b)(1)(C), because the conviction
that resulted in his deportation, misdemeanor serious domestic
abuse assault in violation of IOWA CODE ANN. §§ 236.2(2), 708.1 and
702.2A, is not a crime of violence under 18 U.S.C. § 16 and does
*
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this opinion should not be published and is not precedent except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. 06-40607
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not constitute an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C).
In United States v. Villegas-Hernandez, 468 F.3d 874 (5th
Cir. 2006), cert. denied, ___ S. Ct. ___, No. 06-9050, 2007 WL
205014 (Feb. 20, 2007), this court determined that an offense is
a crime of violence under § 2L1.2 only if the use of force was
both intentional and an element of the offense.
Villegas-Hernandez, 468 F.3d at 880-82. As the Government
concedes, the use of force is not an element of serious domestic
abuse assault under IOWA CODE ANN. §§ 236.2(2), 708.1 and 702.2A.
The district court thus erred in applying an enhancement based on
this offense. Accordingly, the sentence is vacated, and this
matter remanded for resentencing in accordance with this opinion.
Favela-Masuca also challenges the constitutionality of the
treatment of prior felony and aggravated felony convictions under
8 U.S.C. § 1326(b) as sentencing factors rather than elements of
the offense that must be found by a jury. Favela-Masuca’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although he 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). Favela-Masuca properly concedes
that his argument is foreclosed in light of Almendarez-Torres and
No. 06-40607
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circuit precedent, but he raises it here to preserve it for
further review.
We deny as moot his motion to expedite the appeal.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING; MOTION TO EXPEDITE THE APPEAL DENIED AS MOOT.