USA v. Diaz-Vela, No. 06-40939 (5th Cir. 2007)
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United States Court of Appeals Fifth Circuit F I L E D REVISED APRIL 10, 2007 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 4, 2007 Charles R. Fulbruge III Clerk No. 06-40939 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO JAVIER DIAZ-VELA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:06-CR-28-ALL -------------------Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Francisco Javier Diaz-Vela appeals his guilty-plea conviction and sentence for being unlawfully present in the United States following sentence removal. based upon The district its finding court that enhanced his prior Diaz-Vela s California conviction for unlawful sexual intercourse with a minor was a conviction for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). Diaz-Vela argues that the enhancement was improper because the statute under which he was convicted sets the legal age for consent * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40939 -2to sexual activity at 18 years of age while the Model Penal Code and the majority of the states set the legal age of consent for sexual activity at 16 years of age of younger. Diaz-Vela s prior conviction was under CAL. PENAL CODE ANN. § 261.5. Under a common sense approach, Diaz-Vela s conviction was for the enumerated offenses of statutory rape and sexual abuse of a minor and, accordingly, § 2L1.2(b)(1)(A)(ii). a crime of violence under See § 2L1.2, comment. (n.1(b)(iii)); United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir.), cert. denied, 126 S. Ct. 253 (2005); see also United States v. HernandezCastillo, 449 F.3d 1127, 1131 (10th Cir. 2006), cert. denied, 127 S. Ct. 936 (2007); United States v. Vargas-Garnica, 332 F.3d 471, 474 & n.1 (7th Cir. 2003). Diaz-Vela also argues that the felony and aggravated felony provisions contained in 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). constitutional argument is foreclosed by United States, 523 U.S. 224, 235 (1998). This Almendarez-Torres v. Although Diaz-Vela 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). Diaz-Vela properly concedes that his No. 06-40939 -3argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review. AFFIRMED.
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