United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-41714
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE ESTRADA-RODRIGUEZ, also known as Enrique
Jimenez-Abarran,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-741-1
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Enrique Estrada-Rodriguez (Estrada) challenges his
conviction and sentence for having been found unlawfully in the
United States subsequent to deportation, a violation of 8 U.S.C.
§ 1326. As an initial matter, Estrada argues that the “felony”
and “aggravated felony” provisions of § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Estrada concedes that this issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
*
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this opinion should not be published and is not precedent except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. 03-41714
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he seeks to preserve it for further review. This court must
follow the precedent in Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it.” United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (internal quotation
marks and citation omitted). Estrada’s conviction is AFFIRMED.
Estrada argues that the district court incorrectly used his
prior Illinois conviction for aggravated battery of a child to
increase his base offense level by 16 levels under U.S.S.G.
§ 2L1.2. Because Estrada raises this argument for the first time
on appeal, the district court’s application of U.S.S.G. § 2L1.2
is reviewed for “plain error.” See United States v.
Gracia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002); see also United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc)(citing United States v. Olano, 507 U.S. 725, 731-37
(1993)).
Estrada argues that aggravated battery of a child, 720 ILL.
COMP. STAT. 5/12-4.3 (1995), is not a crime of violence for
purposes of U.S.S.G. § 2L1.2. Pertinent commentary to U.S.S.G.
§ 2L1.2 provides that “crime of violence” includes any offense
under state law “that has as an element the use, attempted use,
or threatened use of physical force against the person of
another.” See U.S.S.G. § 2L1.2, comment. (n.1(B)(iii).
Illinois’s aggravated battery of a child statute does not
require any bodily contact; it requires instead that the
defendant intentionally or knowingly “cause[] great bodily harm
No. 03-41714
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or permanent disability or disfigurement.” See 720 ILL. COMP.
STAT. 5/12-4.3. The statute provides that the harm may be
effected “by any means.” Id. Because aggravated battery of a
child in Illinois can, but need not, involve the application of
physical force to the child’s person, it is not a crime of
violence for purposes of U.S.S.G. § 2L1.2. See United States v.
Calderon-Pena, ___ F.3d ___, 2004 WL 1888407 at *4 (5th Cir.
2004)(en banc). Accordingly, the district court’s 16-level
enhancement of Estrada’s offense level was clear error.
Moreover, the district court’s error affected Estrada’s
substantial rights inasmuch as the error resulted in a higher
sentence than Estrada would have otherwise received. See United
States v. Williamson, 183 F.3d 458, 464 (5th Cir. 1998).
Because the increase in the sentence that Estrada received
as a result of the district court’s erroneous application of
U.S.S.G. § 2L1.2 was dramatic, this court will exercise its
discretion to correct the error. See Gracia-Cantu, 302 F.3d at
313. Accordingly, Estrada’s sentence is VACATED and the case is
REMANDED to the district court for resentencing without the
enhancement provided for by U.S.S.G. § 2L1.2.
CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED FOR
RESENTENCING.
No. 03-41714
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GARZA, Circuit Judge, dissenting in part:
Since I continue to believe that Vargas-Duran, Sarmiento-
Funes and Calderon-Pena were wrongly decided, see United States
v. Vargas-Duran, 356 F.3d 598, 610-16 (5th Cir. 2004) (Garza, J.
dissenting); United States v. Calderon-Pena, 283 F.3d 254 (5th
Cir. 2004) (Garza, J. dissenting) United States v. Sarmiento-
Funes, 374 F.3d 336, 346-47 (5th Cir. 2004) (Garza, J.
dissenting), I respectfully dissent in part.