United States v. Avilla

United States Court of Appeals
Fifth Circuit
F I L E D
June 10, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-41451
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
PEDRO AVILLA,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-455-ALL
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Before SMITH, DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Pedro Avilla appeals his guilty-plea conviction and sentence for being found in the United
States after deportation in violation of 8 U.S.C. § 1326(b). Avilla argues that the district court erred
in increasing his offense level by 16 points based on his prior aggravated assault conviction pursuant
to U.S.S.G. § 2L1.2(b)(1)(A). Avilla did not object to this enhancement in the district court and,
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
therefore, review is limited to plain error. See United States v. Rodriguez, 15 F.3d 408, 414-15 (5th
Cir. 1994). Because Avilla had a prior conviction for aggravated assault which falls within the
definition of a crime of violence under the application notes to § 2L1.2, the 16-level enhancement of
Avilla’s sentence under § 2L1.2(b)(1)(A) was not error, plain or otherwise. See § 2L1.2, comment.
(n.1(B)(ii)); United States v. Ramirez, __ F.3d __ (5th Cir. Apr. 5, 2004), 2004 WL 828096 at *3.
For the first time on appeal, Avilla argues that the “felony” and “aggravated felony” provisions
of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in view of Apprendi v. New Jersey, 530 U.S.
466 (2000). He concedes that this argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), but states that he is raising it to preserve it for further review. Apprendi did
not overrule Almendarez-Torres. United States v. Hernandez-Avalos, 251 F.3d 505, 507 & n.1 (5th
Cir. 2001). We must follow Almendarez-Torres until the Supreme Court overrules it. Hernandez-
Avalos, 251 F.3d at 507 n.1.
AFFIRMED.
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