United States v. Robles-Enriquez

In the United States Court of Appeals Fifth Circuit

United States Court of Appeals FILED August 11, 2006 for the Fifth Circuit _______________ Charles R. Fulbruge III Clerk m 05-40388 ______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAIME ROBLES-ENRIQUEZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Southern District of Texas m 1:04-CR-707-ALL _________________________

Before SMITH, BARKSDALE, and DENNIS, Jaime Robles-Enriquez was convicted of il- Circuit Judges. legally reentering the United States after an aggravated felony conviction, in violation of 8 JERRY E. SMITH, Circuit Judge:* U.S.C. § 1326(a) and (b). He appeals his sentence, arguing that the district court im- properly applied a guidelines enhancement based on the mistaken conclusion that his con- * viction qualifies as a “crime of violence” under Pursuant to 5TH CIR. R. 47.5, the court has de- U.S.S.G. § 2L1.2(b)(1)(A)(ii). Bound by termined that this opinion should not be published and is not precedent except under the limited recent precedent, we affirm. circumstances set forth in 5TH CIR. R. 47.5.4.

I. or threatened use of physical force as an ele- Robles-Enriquez was twice convicted in ment or fall within one of the enumerated of- California of assault with a deadly weapon and fenses. See Calderon-Pena, 383 F.3d at 256. by means of force likely to produce great bodily injury. After both offenses he was de- At oral argument, the government conced- ported to Mexico and on both occasions il- ed that Robles-Enriquez’s conviction does not legally reentered the country. On September qualify as a crime of violence under the “use of 16, 2004, he pleaded guilty to illegal reentry of physical force as an element of the offense” an alien following an aggravated felony con- prong of § 2L1.2, despite the government’s viction. The presentence report recom- reliance on this argument in the district court mended that Robles-Enriquez receive a six- and in its brief on appeal. Given this conces- teen-level enhancement for his prior convic- sion, we need not consider whether, under cas- tions based on the “crime of violence” provi- es such as United States v. Vargas-Duran, 356 sion in § 2L1.2. The district court accepted F.3d 598 (5th Cir. 2004) (en banc), and Cal- the recommendation over Robles-Enriquez’s deron-Pena, the underlying statute of convic- objection. tion has use of force as an element.

II. The government does argue, however, that Because Robles-Enriquez raised the issue in Robles-Enriquez’s conviction qualifies as “ag- the district court, our review is de novo. See gravated assault” within the meaning of the United States v. Calderon-Pena, 383 F.3d comment to § 2L1.2, and thus it is an enumer- 254, 256 (5th Cir. 2004) (en banc), cert. de- ated offense. This court recently held, in an- nied, 125 S. Ct. 932 (2005). If an alien con- other case involving the same California stat- victed of illegal reentry into the United States ute, that the government is correct. See Unit- following removal committed a crime of vio- ed States v. Sanchez-Ruedas, 452 F.3d 409, lence before removal, he is subject to a six- 412-14 (5th Cir. 2006). We are bound by that teen-level enhancement. See § 2L1.2(b)(1)- decision, so the enhancement must be upheld. (A)(ii). The relevant commentary provides: III. ‘Crime of violence’ means any of the fol- Robles-Enriquez preserves two arguments lowing: murder, manslaughter, kidnaping, for further review, even though he concedes aggravated assault, forcible sex offenses, we cannot currently afford him relief because statutory rape, sexual abuse of a minor, of binding precedent. We address each in turn. robbery, arson, extortion, extortionate ex- tension of credit, burglary of a dwelling, or A. any offense under federal, state, or local Robles-Enriques claims the district court law that has as an element the use, attempt- abused its discretion by requiring him to co- ed use, or threatened use of physical force operate in the collection of a DNA sample as against the person of another. a condition of supervised release. While this appeal was pending, we decided United States Id. cmt. n.1(B)(iii). For Robles-Enriquez’s v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th sentence enhancement to be proper, his of- Cir. 2005), which holds that an identical claim fense must either have the use, attempted use, was not ripe because the Bureau of Prisons

(“BOP”) could attempt to collect the sample statute, which would, together, have required before the start of the supervised release peri- a different result here. See, particularly, od, while the defendant was still in custody. People v. Colantuono, 865 P.2d 704, 709 See also United States v. Carmichael, 343 (Cal. 1994), and People v. Williams, 29 P.3d F.3d 756, 761-62 (5th Cir. 2003). “Because it 197, 204 (Cal. 2001). Accordingly, it appears is speculative at this juncture whether the BOP that en banc reconsideration of both this deci- will collect [defendant’s] DNA sample while sion and Sanchez-Ruedas may be appropriate. he is in custody, it remains conjecture whether his DNA sample will be taken while he is on supervised release.” Id. As Robles-Enriquez admits, Riascos-Cuenu is indistinguishable from this case.

B. Robles-Enriquez argues that § 1326(b) is unconstitutional under Apprendi v. New Jer- sey, 530 U.S. 466 (2000). His argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1988), and by nu- merous decisions that have properly held that Almendarez-Torres remains good law even af- ter Apprendi. See, e.g., United States v. Gar- za-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). See also Ran- gel-Reyes v. United States, 126 S. Ct. 2873 (2006).

The judgment of sentence is AFFIRMED. DENNIS, Circuit Judge, specially concurring:

I acquiesce in the panel majority’s conclu- sion that it is bound by the recent panel deci- sion in United States v. Sanchez-Ruedas, 452 F.3d 409, 412-14 (5th Cir. 2006). Strictly construed, however, it appears to me that we are bound by the panel decision in United States v. Torres-Diaz, 438 F.3d 529, 536-37 (5th Cir.), cert. denied, 126 S. Ct. 1487 (2006), and by the various opinions from the California courts interpreting that state’s