United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2007
Charles R. Fulbruge III
Clerk
No. 06-40307
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO PENA-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1805-ALL
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Mario Pena-Lopez appeals his guilty-plea conviction and
sentence for illegal reentry, in violation of 8 U.S.C. § 1326.
Pena-Lopez first argues that the district court erred in
assessing a 16-level “crime of violence” enhancement under
U.S.S.G. § 2L1.2 based on his prior felony conviction for sexual
assault of a child under TEX. PENAL CODE § 22.011(a)(2). According
to Pena-Lopez, such an offense does not constitute a “crime of
violence” within the meaning of § 2L1.2(b)(1)(A). As Pena-Lopez
*
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this opinion should not be published and is not precedent except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. 06-40307
-2-
concedes, we review this argument for plain error. See United
States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).
The district court committed no error, plain or otherwise.
A violation of § 22.011(a)(2) “meet[s] a common-sense as well as
a generic, contemporary definition of statutory rape.” United
States v. Alvarado-Hernandez, 465 F.3d 188, 189-90 (5th Cir.
2006). It is thus the equivalent of an enumerated offense that
triggers the § 2L1.2 enhancement.
Pena-Lopez also challenges the constitutionality of
§ 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. His 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. 2005). Pena-Lopez 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.