United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 27, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40627
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ENRIQUE BARRAGAN-CASTRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-1074
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Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Jose Enrique Barragan-Castro (Barragan) appeals his
conviction and sentence for illegal reentry after having been
deported following a conviction for aggravated felony in
violation of 8 U.S.C. § 1326(a) and (b). Barragan contends that
the district court erred by applying an eight-level increase to
his offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(C), because
the conviction that resulted in his deportation, misdemeanor
assault in violation of Texas Penal Code Ann. 22.01(a)(1), is not
*
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this opinion should not be published and is not precedent except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. 06-40627
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a crime of violence under 18 U.S.C. § 16, and does not constitute
an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). In United
States v. Villegas-Hernandez, 468 F.3d 874, 878-84 (5th Cir.
2006), we considered the same Texas statute and held that it does
not meet either definition of a crime of violence under § 16 and,
thus, is not an “aggravated felony” under § 2L1.2(b)(1)(C).
Accordingly, the district court erred in enhancing Barragan’s
sentence pursuant to § 2L1.2(b)(1)(C). Because we cannot
conclude, based on the record as a whole, that the error did not
affect the district court’s selection of the sentence imposed,
that is, the error was harmless, a remand is appropriate. See
Williams v. United States, 503 U.S. 193, 203 (1992). Barragan’s
sentence is vacated and this matter remanded for resentencing in
accordance with this opinion.
Barragan also challenges the constitutionality of the
treatment of prior felony and aggravated felony convictions under
8 U.S.C. § 1326(b) as sentencing factors rather elements of the
offense that must be found by a jury. This challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Barragan suggests that a majority of the
Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), this court has
repeatedly rejected such arguments and found 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).
No. 06-40627
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Barragan concedes his argument is foreclosed, but raises it
preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.