United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-41273
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GERMAN LANDEROS-REYES
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-442-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
German Landeros-Reyes (Landeros) appeals from the 23-month
sentence imposed following his guilty plea conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. He argues for the
first time on appeal that § 1326(b) is unconstitutional in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000). He also argues
for the first time that his prior misdemeanor assault convictions
were not crimes of violence for purposes of enhancement under
U.S.S.G. § 2L1.2(b)(1)(E).
*
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this opinion should not be published and is not precedent except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. 06-41273
-2-
Landeros’s challenge to § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Landeros 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. 2005). Landeros 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.
Landeros’s challenge to the district court’s guidelines
calculations is reviewed for plain error only. See United States
v. Villegas, 404 F.3d 355, 358 (2005). The four-level
enhancement under § 2L1.2(b)(1)(E) is appropriate where the
defendant has three or more misdemeanor convictions for crimes of
violence. The district court relied on Landeros’s misdemeanor
convictions for assault under Texas law to justify the
enhancement. Subsequent to sentencing, this court held that the
crime of misdemeanor assault under Texas law, even when committed
by causing bodily injury, is not a crime of violence under the
Guidelines. See United States v. Villegas-Hernandez, 468 F.3d
874, 882 (5th Cir. 2006); United States v. Fierro-Reyna, 466 F.3d
324, 326 (5th Cir. 2006). Therefore, as the Government concedes,
the district court plainly erred by applying the enhancement.
No. 06-41273
-3-
See United States v. Martinez-Vega, 471 F.3d 559, 561 (5th Cir.
2006). Contrary to the Government’s view, this error affected
Landeros’s substantial rights and affected the fairness and
integrity of the judicial proceedings. See Garza-Lopez, 410 F.3d
at 275; United States v. Gonzales, ____ F.3d ____ , No. 05-41221,
2007 WL 1063993 at *3 (5th Cir. Mar. 7, 2007). Accordingly,
Landeros’s sentence is VACATED, and the case is REMANDED for
resentencing.