United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 19, 2007
Charles R. Fulbruge III
Clerk
No. 06-50850
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER ROSAS-AGUILAR, also known as Javier Rueda-Aguilar, also
known as Javier Aguilar Rueda,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-377-ALL
--------------------
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Javier Rosas-Aguilar (Rosas) appeals following his guilty
plea to illegal reentry, in violation of 8 U.S.C. § 1326. Rosas
argues for the first time on appeal that his prior conviction in
Texas for attempted sexual assault is not a crime of violence and
that the district court therefore erroneously applied a 16-level
sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Because he did not object in the district court to this
enhancement, Rosas correctly concedes that our review is for
*
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this opinion should not be published and is not precedent except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. 06-50850
-2-
plain error. See United States v. Gracia-Cantu, 302 F.3d 308,
310 (5th Cir. 2002).
In support of his argument, Rosas relies on United States v.
Luciano-Rodriguez, 442 F.3d 320, 322-23 (5th Cir.), cert. denied,
127 S. Ct. 747 (2006), where we held that the Texas offense of
sexual assault was not a forcible sex offense because certain
subsections of the Texas statute “criminaliz[ed] assented-to-but-
not-consented-to conduct” and the element of force was absent
from those subsections. During the course of briefing, the
Government has supplemented the appellate record with Rosas’s
state court charging papers and judgment, which show that he was
charged with a sexual assault by the use of force. Rosas now
concedes that his challenge is unavailing. In light of the
Government’s supplementation and Rosas’s concession, Rosas has
failed to demonstrate plain error. See United States v.
Calderon-Pena, 383 F.3d 254, 258 (5th Cir. 2004) (en banc);
§ 2L1.2(b)(1)(A)(ii); cf. Shepard v. United States, 544 U.S. 13,
16 (2005).
Rosas also argues, in light of Apprendi v. New Jersey, 530
U.S. 466 (2000), that the 37-month term of imprisonment imposed
in his case exceeds the statutory maximum sentence allowed for
the § 1326(a) offense charged in his indictment. He challenges
the constitutionality of § 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.
No. 06-50850
-3-
Rosas’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, 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). Rosas
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.
AFFIRMED.