United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 5, 2005
Charles R. Fulbruge III
Clerk
No. 05-50104
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS PEREZ-ISLAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1775-ALL-KC
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Luis Perez-Islas appeals his sentence following his
guilty-plea conviction for illegal reentry by an alien. Perez-
Islas argues that the district court plainly erred in sentencing
him under mandatory Sentencing Guidelines under United States v.
Booker, 125 S. Ct. 738 (2005). As Perez-Islas concedes, we
review for plain error. See United States v. Mares, 402 F.3d
511, 513 (5th Cir. 2005), petition for cert. filed, (Mar. 31,
2005) (No. 04-9517). Here, the district court erred by imposing
*
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this opinion should not be published and is not precedent except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. 05-50104
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a sentence pursuant to a mandatory application of the sentencing
guidelines. See Booker, 125 S. Ct. at 768; see also Mares,
402 F.3d at 520-21 & n.9. However, Perez-Islas cannot establish
that this error affected his substantial rights. United States
v. Olano, 507 U.S. 725, 734 (1993). Because Perez-Islas has not
shown that his sentence likely would have been different, his
Booker argument fails. See Mares, 402 F.3d at 521.
Perez-Islas argues that the district court plainly erred in
relying on the modified presentence report (PSR) in enhancing his
sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) by 16 levels for a
prior removal after a conviction of a “crime of violence” based
on his prior Texas conviction for aggravated robbery. We review
for plain error. See United States v. Villegas, 404 F.3d 355,
356 (5th Cir. 2005).
The district court was not permitted to rely on the
characterization of the prior offense in the modified PSR in
order to enhance Perez-Islas’s sentence. See United States v.
Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). However, the
statutory definition of Perez-Islas’s prior conviction falls
within U.S.S.G. § 2L1.2’s definition of the type of crime for
which the enhancement is warranted. See TEX. PENAL CODE
§ 29.03(a); U.S.S.G. § 2L1.2, comment. (n.(1)(B)(iii)). Robbery
is a specifically enumerated “crime of violence” for enhancement
purposes under U.S.S.G. § 2L1.2. See U.S.S.G. § 2L1.2, comment.
(n.(1)(B)(iii)). Assuming that the district court did rely on
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the modified PSR’s characterization of Perez-Islas’s prior
offense, such error did not affect Perez-Islas’s substantial
rights because the statutory definition of the crime places it
squarely within the definition of “crime of violence” under
U.S.S.G. § 2L1.2. Cf. Garza-Lopez, 410 F.3d at 273-75.
Finally, Perez-Islas argues that the indictment did not
charge him with an offense under 8 U.S.C. § 1326(b) because it
did not charge him with having a prior conviction for an
aggravated felony. Perez-Islas concedes that his argument is
foreclosed under Almendarez-Torres v. United States, 523 U.S. 224
(1998), but states that he raises it to preserve it for possible
Supreme Court review because of the Court’s decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90. We must follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” United States v. Mancia-Perez,
331 F.3d 464, 470 (5th Cir.) (quotation marks and citation
omitted), cert. denied, 540 U.S. 935 (2003). Therefore, Perez-
Islas’s argument must fail. See id. The judgment of the
district court is AFFIRMED.