USA v. Israel Perez-Jimenez, No. 16-10135 (5th Cir. 2016)

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The court issued a subsequent related opinion or order on December 7, 2018.

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Case: 16-10135 Document: 00513808316 Page: 1 Date Filed: 12/21/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-10135 Summary Calendar United States Court of Appeals Fif h Circuit FILED December 21, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ISRAEL PEREZ-JIMENEZ, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:14-CR-269-1 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Israel Perez-Jimenez pleaded guilty to illegal reentry and was sentenced to 30 months of imprisonment. The advisory guidelines calculations included an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) for a prior, aggravated felony conviction based on Perez-Jimenez’s Texas convictions for burglary of a building and burglary of a vehicle. Perez-Jimenez now argues that the district court erred by characterizing his offenses as aggravated 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-10135 Document: 00513808316 Page: 2 Date Filed: 12/21/2016 No. 16-10135 felonies under 8 U.S.C. § 1101(a)(43)(F) for the purposes of convicting and sentencing him under 8 U.S.C. § 1326(b)(2). Relying on Johnson v. United States, 135 S. Ct. 2551 (2015), Perez-Jimenez argues that the definition of a crime of violence in 18 U.S.C. § 16(b), which is incorporated by reference into § 1101(a)(43)(F)’s definition of an aggravated felony, is unconstitutionally vague on its face. Perez-Jimenez’s arguments are foreclosed by our recent decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259). Additionally, Perez-Jimenez challenges his enhanced sentence under § 1326(b), arguing that because the indictment did not allege a prior conviction, his sentence exceeds the statutory maximum penalty for a conviction under § 1326(a). He challenges the validity of Almendarez-Torres v. United States, 523 U.S. 224 (1998), in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013). Perez-Jimenez correctly concedes that his argument is foreclosed. The judgment of the district court is AFFIRMED. 2