United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40770
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS MAURICIO RAMOS-BARAHONA, also known as Carlos
Ramos-Barahona
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-55-ALL
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Mauricio Ramos-Barahona appeals from a guilty-plea conviction for
being unlawfully present in the United States following deportation. Ramos-
Barahona argues that the district court erred in assigning a 16-level increase
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a prior California conviction for
assault with a deadly weapon. Because Ramos-Barahona raised this issue
*
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should not be published and is not precedent except under the limited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. 05-40770
below, this court reviews the issue de novo. United States v. Calderon-Peña,
383 F.3d 254, 256 (5th Cir. 2004) (en banc).
In United States v. Sanchez-Ruedas, 452 F.3d 409, 412-14 (5th Cir.), cert.
denied, 127 S. Ct. 315 (2006), we examined the identical California statute at
issue in Ramos-Barahona’s case and held that the California statute was
sufficiently similar to the generic contemporary definition of aggravated assault
to qualify as an enumerated crime of violence offense. The district court did not
err in assigning a 16-level increase for Ramos-Barahona’s prior conviction for
assault with a deadly weapon. See id.
Ramos-Barahona challenges 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Ramos-
Barahona’s constitutional challenge is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Ramos-Barahona 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); see also Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United
States v. Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007).
Ramos-Barahona 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.
2