USA v. Jose Isidro-Acosta, No. 10-40243 (5th Cir. 2010)

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Case: 10-40243 Document: 00511274923 Page: 1 Date Filed: 10/26/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-40243 Conference Calendar October 26, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE SANTOS ISIDRO-ACOSTA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:09-CR-1513-1 Before SMITH, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Jose Santos Isidro-Acosta appeals his 41-month sentence following his conviction of unlawful reentry pursuant to 8 U.S.C. § 1326. Isidro-Acosta contends that the district court erred by imposing a 16-level crime of violence enhancement based on his prior Texas conviction of indecency by contact with a child under 17 years of age, a violation of Texas Penal Code § 21.11(a)(2). He argues that the Texas conviction is not within the enumerated offense of sexual abuse of a minor because an offense under § 21.11(a) can be committed against * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 10-40243 Document: 00511274923 Page: 2 Date Filed: 10/26/2010 No. 10-40243 a victim who is 16 years of age. The Government moves for summary affirmance in lieu of filing a brief. As Isidro-Acosta concedes, his argument is foreclosed by circuit precedent. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). Accordingly, the judgment of the district court is AFFIRMED. The Government s motion for summary affirmance is GRANTED, and its alternative motion for an extension of time is DENIED. 2

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