In the United States Court of Appeals
Fifth Circuit
United States Court of Appeals FILED
August 11, 2006
for the Fifth Circuit
_______________ Charles R. Fulbruge III
Clerk
m 05-40388
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAIME ROBLES-ENRIQUEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 1:04-CR-707-ALL
_________________________
Before SMITH, BARKSDALE, and DENNIS, Jaime Robles-Enriquez was convicted of il-
Circuit Judges. legally reentering the United States after an
aggravated felony conviction, in violation of 8
JERRY E. SMITH, Circuit Judge:* U.S.C. § 1326(a) and (b). He appeals his
sentence, arguing that the district court im-
properly applied a guidelines enhancement
based on the mistaken conclusion that his con-
* viction qualifies as a “crime of violence” under
Pursuant to 5TH CIR. R. 47.5, the court has de-
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Bound by
termined that this opinion should not be published
and is not precedent except under the limited recent precedent, we affirm.
circumstances set forth in 5TH CIR. R. 47.5.4.
I. or threatened use of physical force as an ele-
Robles-Enriquez was twice convicted in ment or fall within one of the enumerated of-
California of assault with a deadly weapon and fenses. See Calderon-Pena, 383 F.3d at 256.
by means of force likely to produce great
bodily injury. After both offenses he was de- At oral argument, the government conced-
ported to Mexico and on both occasions il- ed that Robles-Enriquez’s conviction does not
legally reentered the country. On September qualify as a crime of violence under the “use of
16, 2004, he pleaded guilty to illegal reentry of physical force as an element of the offense”
an alien following an aggravated felony con- prong of § 2L1.2, despite the government’s
viction. The presentence report recom- reliance on this argument in the district court
mended that Robles-Enriquez receive a six- and in its brief on appeal. Given this conces-
teen-level enhancement for his prior convic- sion, we need not consider whether, under cas-
tions based on the “crime of violence” provi- es such as United States v. Vargas-Duran, 356
sion in § 2L1.2. The district court accepted F.3d 598 (5th Cir. 2004) (en banc), and Cal-
the recommendation over Robles-Enriquez’s deron-Pena, the underlying statute of convic-
objection. tion has use of force as an element.
II. The government does argue, however, that
Because Robles-Enriquez raised the issue in Robles-Enriquez’s conviction qualifies as “ag-
the district court, our review is de novo. See gravated assault” within the meaning of the
United States v. Calderon-Pena, 383 F.3d comment to § 2L1.2, and thus it is an enumer-
254, 256 (5th Cir. 2004) (en banc), cert. de- ated offense. This court recently held, in an-
nied, 125 S. Ct. 932 (2005). If an alien con- other case involving the same California stat-
victed of illegal reentry into the United States ute, that the government is correct. See Unit-
following removal committed a crime of vio- ed States v. Sanchez-Ruedas, 452 F.3d 409,
lence before removal, he is subject to a six- 412-14 (5th Cir. 2006). We are bound by that
teen-level enhancement. See § 2L1.2(b)(1)- decision, so the enhancement must be upheld.
(A)(ii). The relevant commentary provides:
III.
‘Crime of violence’ means any of the fol- Robles-Enriquez preserves two arguments
lowing: murder, manslaughter, kidnaping, for further review, even though he concedes
aggravated assault, forcible sex offenses, we cannot currently afford him relief because
statutory rape, sexual abuse of a minor, of binding precedent. We address each in turn.
robbery, arson, extortion, extortionate ex-
tension of credit, burglary of a dwelling, or A.
any offense under federal, state, or local Robles-Enriques claims the district court
law that has as an element the use, attempt- abused its discretion by requiring him to co-
ed use, or threatened use of physical force operate in the collection of a DNA sample as
against the person of another. a condition of supervised release. While this
appeal was pending, we decided United States
Id. cmt. n.1(B)(iii). For Robles-Enriquez’s v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th
sentence enhancement to be proper, his of- Cir. 2005), which holds that an identical claim
fense must either have the use, attempted use, was not ripe because the Bureau of Prisons
2
(“BOP”) could attempt to collect the sample statute, which would, together, have required
before the start of the supervised release peri- a different result here. See, particularly,
od, while the defendant was still in custody. People v. Colantuono, 865 P.2d 704, 709
See also United States v. Carmichael, 343 (Cal. 1994), and People v. Williams, 29 P.3d
F.3d 756, 761-62 (5th Cir. 2003). “Because it 197, 204 (Cal. 2001). Accordingly, it appears
is speculative at this juncture whether the BOP that en banc reconsideration of both this deci-
will collect [defendant’s] DNA sample while sion and Sanchez-Ruedas may be appropriate.
he is in custody, it remains conjecture whether
his DNA sample will be taken while he is on
supervised release.” Id. As Robles-Enriquez
admits, Riascos-Cuenu is indistinguishable
from this case.
B.
Robles-Enriquez argues that § 1326(b) is
unconstitutional under Apprendi v. New Jer-
sey, 530 U.S. 466 (2000). His argument is
foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1988), and by nu-
merous decisions that have properly held that
Almendarez-Torres remains good law even af-
ter Apprendi. See, e.g., United States v. Gar-
za-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). See also Ran-
gel-Reyes v. United States, 126 S. Ct. 2873
(2006).
The judgment of sentence is AFFIRMED.
DENNIS, Circuit Judge, specially concurring:
I acquiesce in the panel majority’s conclu-
sion that it is bound by the recent panel deci-
sion in United States v. Sanchez-Ruedas, 452
F.3d 409, 412-14 (5th Cir. 2006). Strictly
construed, however, it appears to me that we
are bound by the panel decision in United
States v. Torres-Diaz, 438 F.3d 529, 536-37
(5th Cir.), cert. denied, 126 S. Ct. 1487
(2006), and by the various opinions from the
California courts interpreting that state’s
3