United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-11371
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORENZO OLIVAS-PENA, also known as Juan Manuel
Castanon-Maciel, also known as Lorenzo Pena-Martinez
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:05-CR-39-ALL
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Lorenzo Olivas-Pena appeals his conviction and sentence for
unlawful reentry following deportation subsequent to an
aggravated felony conviction, a violation of 8 U.S.C. § 1326(a),
(b). In his first issue on appeal, Olivas-Pena asserts that the
district court erred in applying a 16-level enhancement pursuant
to U.S.S.G. § 2L1.2 for a prior crime of violence conviction.
Oliva-Pena was convicted under California Penal Code § 288(b) for
lewd conduct with a minor. Olivas-Pena preserved error 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this opinion should not be published and is not precedent except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. 05-11371
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objecting to the enhancement, and we review the district court’s
determination de novo. See United States v. Calderon-Pena, 383
F.3d 254, 256 (5th Cir. 2004) (en banc); see also United States
v. Villanueva, 408 F.3d 193, 202, 203 n.9 (5th Cir.), cert.
denied, 126 S. Ct. 268 (2005).
The term “crime of violence” under § 2L1.2 means (1) any of
certain enumerated offenses, or (2) “any offense under federal,
state, or local law that has as an element the use, attempted
use, or threatened use of physical force against the person of
another.” U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)). We need not
reach Olivas-Pena’s argument that his offense does not meet the
second prong of the definition, as we conclude that it
constitutes the enumerated offense of sexual abuse of a minor.
Where, as here, the enhancement provision does not define the
enumerated offense, we define it using a “common sense” approach,
looking to the offense’s ordinary, contemporary meaning. See
United States v. Izaguirre-Flores, 405 F.3d 270, 275-76 (5th
Cir.), cert. denied, 126 S. Ct. 253 (2005). Using that approach,
we have defined “sexual abuse of a minor” to include conduct with
or in the presence of a minor, the purpose of which is the
arousal or gratification of sexual desires. See id. at 275; see
also United States v. Zavala-Sustaita, 214 F.3d 601, 604-05 (5th
Cir. 2000). The statute at issue in this case criminalizes the
commission of lewd or lascivious acts on or with the body of a
minor in order to gratify lust, passion, or sexual desires. See
No. 05-11371
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CAL. PENAL CODE § 288(a), (b). Such an offense fits within the
ordinary, contemporary definition of sexual abuse of a minor.
See Izaguirre-Flores, 405 F.3d at 276-77; see also Zavala-
Sustaita, 214 F.3d at , 604-05. Accordingly, we find no error in
the district court’s imposition of the 16-level enhancement.
In his second point of error, Olivas-Pena argues that
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury is unconstitutional in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000). Olivas-Pena’s
constitutional challenge to § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Olivas-Pena contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, we have
repeatedly rejected such arguments on the basis that Almendarez-
Torres remains binding. See United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Olivas-Pena properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises
it here to preserve it for further review.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.