United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-40061
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR LOPEZ-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-561-ALL
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Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Victor Lopez-Garcia appeals the sentence imposed after his
plea of guilty to reentering the United States illegally after
deportation. His sentence was enhanced due to a prior California
conviction of unlawful sexual intercourse with a minor, in
violation of CAL. PENAL CODE ANN. § 261.5. Lopez-Garcia contends
that the prior offense of conviction was neither a felony nor a
crime of violence under U.S.S.G. § 2L1.2.
The now-advisory federal sentencing guidelines define felony
as “any federal, state, or local offense punishable by
*
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this opinion should not be published and is not precedent except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. 05-40061
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imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2,
comment. (n.2). Section 261.5(c) of the CALIFORNIA PENAL CODE
provides that a violation may be either misdemeanor or a felony
punishable by imprisonment for an unspecified term. CAL. PENAL
CODE ANN. § 261.5(c). The record shows that Lopez-Garcia faced up
to three years of imprisonment and that he failed to get the
offense reduced to a misdemeanor. He was thus convicted of a
felony.
Lopez-Garcia contends also that his prior offense does not
fall within the generic definitions of “statutory rape” or
“sexual abuse of a minor” under the comments to U.S.S.G. § 2L1.2.
Our review of the prior offense may include reference to the
charging papers. See United States v. Calderon-Pena, 383 F.3d
254, 258 & n.5 (5th Cir. 2004), cert. denied, 125 S. Ct. 932
(2005). Lopez-Garcia’s charging instrument alleged sexual
intercourse with a minor who was not Lopez’s spouse and who was
more than three years younger than Lopez. Under a “common sense”
approach, such an offense is “statutory rape” as listed under the
comment to U.S.S.G. § 2L1.2. See United States v.
Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005); see also In
re Jennings, 95 P.3d 906, 921 (Cal. 2004) (noting that statutory
rape is now called unlawful sexual activity with a minor under
CAL. PENAL CODE ANN. § 261.5). The offense also meets the common-
sense definition of “sexual abuse of a minor.” See
Izaguirre-Flores, 405 F.3d at 275-76 (similar North Carolina
No. 05-40061
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crime); United States v. Zavala-Sustaita, 214 F.3d 601, 607 (5th
Cir. 2000) (similar Texas crime). Lopez-Garcia’s prior conviction
was for a “crime of violence.”
For the first time on appeal, Lopez-Garcia argues that the
district court erred by imposing his sentence under a mandatory
sentencing guidelines scheme, citing United States v. Booker, 125
S. Ct. 738, 756 (2005). Lopez-Garcia arguably waived this issue
in his plea agreement when he waived the right to have facts
essential to punishment charged in the indictment or proved to a
jury and when he agreed to be sentenced under the federal
sentencing guidelines. We need not address the waiver, however,
because Lopez-Garcia’s Booker claim fails under the applicable
plain-error standard of review. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.) (plain
error), cert. denied, 126 S. Ct. 267 (2005).
Although sentencing Lopez-Garcia under a mandatory
guidelines scheme constituted error in light of Booker, his claim
fails because there is no showing that the district court would
have imposed a lesser sentence under advisory guidelines. See
id. at 733; United States v. Mares, 402 F.3d 511, 517-18, 521
(5th Cir.), cert. denied, 126 S. Ct. 43 (2005). In addition,
Lopez-Garcia’s argument that the error is structural and
presumptively prejudicial is without merit. See United States v.
Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, 126
S. Ct. 464 (2005).
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Lopez-Garcia next argues that the felony and aggravated
felony provisions of 8 U.S.C. § 1326(b) are unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes
that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he posits that Apprendi casts
doubt on the continuing validity of Almendarez-Torres. 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). This court must follow Almendarez-Torres “unless and
until the Supreme Court itself determines to overrule it.”
Dabeit, 231 F.3d at 984 (quotation marks omitted).
The district court’s judgment is AFFIRMED.