United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2005
Charles R. Fulbruge III
Clerk
No. 05-50336
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE JIMENEZ-RENTERIA
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1377-ALL-FM
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Before KING, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Jose Jimenez-Renteria unconditionally pleaded guilty to
unlawful presence in the United States after deportation. He was
sentenced to 70 months of imprisonment. He appeals his sentence.
Jimenez-Renteria argues that his modified presentence
investigation report (“MPSR”) was the only source used by the
district court to establish that he had a prior aggravated
robbery conviction. He contends that the MPSR was insufficient
to establish that this prior conviction was a “crime of violence”
*
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that this opinion should not be published and is not precedent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. 05-50336
-2-
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Jimenez-Renteria also
asserts that the district court should have applied the
categorical approach set forth in Taylor v. United States, 495
U.S. 575 (1990).
The MPSR noted that, on April 7, 2003, Jimenez-Renteria
pleaded guilty to aggravated robbery with a deadly weapon.
Jimenez-Renteria has never denied that he had a prior aggravated
robbery conviction. Therefore, the district court was free to
adopt that information without further inquiry. See United
States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004).
Jimenez-Renteria did not object to this enhancement in the
district court and, therefore, review is limited to plain error.
See United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.
2005). Because Jimenez-Renteria had a prior conviction for
aggravated robbery which falls within one of the enumerated
definitions of a crime of violence under the application notes to
§ 2L1.2, the 16-level enhancement of Jimenez-Renteria’s sentence
under § 2L1.2(b)(1)(A)(ii) was not plain error. See § 2L1.2,
comment. (n.1(B)(iii)); Taylor, 495 U.S. at 599; United States v.
Izaguirre-Flores, 405 F.3d 270, 273-275 (5th Cir. 2005), cert.
denied, S. Ct. (Oct. 3, 2005) (No. 05-5469).
For the first time on appeal, Jimenez-Renteria contends that
the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b) are unconstitutional. As Jimenez-Renteria concedes,
this argument is foreclosed by Almendarez-Torres v. United
No. 05-50336
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States, 523 U.S. 224 (1998), which this court must follow "unless
and until the Supreme Court itself determines to overrule it.”
Izaguirre-Flores, 405 F.3d at 277-78.
The sentence is AFFIRMED.