United States v. Carrillo-Soria

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 19, 2007

Charles R. Fulbruge III
Clerk
No. 05-11120
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO CARRILLO-SORIA,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas
(6:05-CR-17-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Alejandro Carrillo-Soria appeals his 2005

conviction and sentence for illegal reentry after deportation.

Carrillo-Soria contends that the district court erred by applying

a 16-level increase to his offense level, based on its finding that

his 2002 state felony conviction for assault was a crime of

violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Carrillo-Soria’s

assault offense was committed under TEX. PENAL CODE ANN. § 22.01(a)(1)

and (b)(2) (Vernon 2003), which does not set forth a crime of

*
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this opinion should not be published and is not precedent except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.
violence under § 2L1.2(b)(1)(A)(ii). See § 2L1.2, comment.

(n.1(B)(iii)) (reflecting that simple assault is not an enumerated

offense constituting a “crime of violence”); United States v.

Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006)(determining

that use of force is not an element of § 22.01(a)(1)); see also

§ 22.01(b)(2)(lacking use of force as an element). As this error

is prejudicial, Carrillo-Soria’s sentence is vacated and his case

remanded for resentencing in accordance with this opinion. See

Villegas-Hernandez, 468 F.3d at 885.

Carrillo-Soria also challenges the constitutionality of

8 U.S.C. § 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. Carrillo-Soria’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998). Although he contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Carrillo-Soria

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.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

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