IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51273
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO GOMEZ-VAZQUEZ, also known as Eduardo
Gomez-Vasquez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CR-142-ALL-JN
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Eduardo Gomez-Vazquez (“Gomez”) appeals his guilty-plea
conviction and sentence for illegal reentry following deportation
after having been convicted of an aggravated felony, pursuant to
8 U.S.C. §§ 1326(a) and (b)(2). Gomez argues that the district
court plainly erred in enhancing his offense level by 16 points
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his prior Texas
conviction for sexual assault of a child did not involve the use
of force and was not a “crime of violence” under the guideline.
He contends for the first time on appeal that his guilty plea was
*
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that this opinion should not be published and is not precedent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. 01-51273
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not knowing and voluntary because he thought he had a plea
agreement for a lower sentence. He also contends for the first
time on appeal that his prior conviction was an element of the
offense that had to be alleged in the indictment under Apprendi
v. New Jersey, 530 U.S. 466 (2000). He has filed an unopposed
motion for substitution of appointed counsel; that motion is
GRANTED.
The district court did not err in enhancing Gomez’s
sentence. Sexual abuse of a minor is “inherently violent” and
constitutes a “‘crime of violence’ even if no element of physical
force is necessary to prove it.” United States v. Rayo-Valdez,
302 F.3d 314, 319-20 (5th Cir. 2002).
Any error by the magistrate judge at rearraignment in not
inquiring specifically as to the existence of a plea agreement
did not affect Gomez’s substantial rights, in light of the record
as a whole, which shows that there was no plea agreement. See
United States v. Vonn, 122 S. Ct. 1043, 1046 (2002).
Gomez concedes that his indictment-sufficiency issue is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998); he seeks to preserve the issue for Supreme Court review.
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 531 U.S. 1202 (2001). This court must
follow the precedent set in Almendarez-Torres “unless and until
the Supreme Court itself determines to overrule it.” Dabeit, 231
No. 01-51273
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F.3d at 984 (internal quotation and citation omitted). This
issue is foreclosed.
MOTION GRANTED; AFFIRMED.