United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-41306
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAZARO RAMIREZ-CASTRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-347-ALL
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Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Lazaro Ramirez-Castro was convicted after pleading guilty to
illegal reentry following a prior deportation after a conviction
of an aggravated felony. He now appeals that conviction and his
46-month sentence.
Ramirez-Castro argues that his previous Florida conviction
of aggravated battery with a deadly weapon is not a crime of
violence because it is not an offense enumerated under U.S.S.G.
§ 2L1.2 comment. (n.1(B)(iii) and it does not have as an element
*
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this opinion should not be published and is not precedent except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. 06-41306
-2-
the use, attempted use, or threatened use of physical force
against the person of another. Ramirez-Castro’s conviction for
aggravated battery using a deadly weapon under FLA. STAT. ANN.
§ 784.045(1)(a)(2) “has as an element at least a threatened use
of force” and thus was properly characterized by the district
court as a crime of violence. See United States v. Dominguez,
___ F.3d ___, 2007 WL 441885, at *1-4 (5th Cir. 2007).
Ramirez-Castro 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. Ramirez-Castro’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). Ramirez-Castro 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.