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.
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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opinion should not be published and is not precedent except under the limited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.