United States v. Flores-Pizana

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 24, 2007

Charles R. Fulbruge III
No. 06-50576 Clerk
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER FLORES-PIZANA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
No. 2:05-CR-660-ALL
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Before DAVIS, SMITH, and OWEN, Circuit Judges.

PER CURIAM:*

Javier Flores-Pizana appeals his conviction of and sentence

for unlawful reentry in violation of 8 U.S.C. § 1326. Flores-Pi-

zana first challenges the district court’s imposition of a 16-level

“crime of violence” enhancement imposed pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), which was based on his conviction of assault

*
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opinion should not be published and is not precedent except under the limited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. 06-50576
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under TEX. PENAL CODE ANN. § 22.01(a)(1). We review the district

court’s interpretation and application of the sentencing guidelines

de novo. United States v. Fierro-Reyna, 466 F.3d 324, 326 (5th

Cir. 2006).

In light of United States v. Villegas-Hernandez, 468 F.3d 874,

880-82 (5th Cir. 2006), cert. denied, 127 S. Ct. 1351 (2007), which

was issued after sentencing in this case, the imposition of the en-

hancement was erroneous. Further, because the government has not

shown or even argued that the error did not affect the district

court’s selection of the sentence imposed, the error was not harm-

less. See United States v. Davis, 478 F.3d 266, 273 (5th Cir.

2007); see also United States v. Lopez-Urbina, 434 F.3d 750, 765

(5th Cir. 2005). We reject the government’s argument that we

should follow United States v. Shelton, 325 F.3d 553, 558-61 (5th

Cir. 2003), rather than Villegas-Hernandez.

Flores-Pizana also contends that § 1326(b)’s treatment of

felony and aggravated felony convictions as sentencing factors

rather than elements of the offense that must be found by a jury is

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). This constitutional challenge to § 1326(b) is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Flores-Pizana contends that Almendarez-Torres was incor-

rectly decided and that a majority of the Supreme Court would over-

rule it in light of Apprendi, we have repeatedly rejected such ar-

guments on the basis that Almendarez-Torres remains binding. See
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Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied,

126 S. Ct. 298 (2005). Flores-Pizana 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.

For the foregoing reasons, we AFFIRM the conviction, VACATE

the sentence, and REMAND for resentencing.