IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 23, 2008
No. 07-40149
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SERGIO MAURICIO GUZMAN-SALDIVAR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-544-1
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
Sergio Mauricio Guzman-Saldivar (Guzman) pleaded guilty to an
indictment charging him with illegal reentry following deportation. Guzman
was sentenced to 37 months of imprisonment and a three-year term of
supervised release. Guzman gave timely notice of his appeal.
Guzman contends that the district court erred in ruling that his prior
New York conviction of third-degree rape was a “crime of violence” for purposes
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40149
of U.S.S.G. § 2L1.2. See N.Y. PENAL LAW § 130.25 (McKinney 2004). We review
this question de novo. See United States v. Villegas, 404 F.3d 355, 359-61 (5th
Cir. 2005). We reject Guzman’s argument that the district court did not have
competent evidence from which to determine the offense of conviction. See
United States v. Neri-Hernandes, ___ F.3d ___, 2007 WL 2966825, at *5 (5th Cir.
Oct. 12, 2007).
Under § 2L1.2(b)(1)(A)(ii), a defendant’s offense level is increased by
16 levels if, prior to deportation, he was convicted of a “crime of violence.” The
offense of statutory rape is a crime of violence. § 2L1.2, comment. (n.1(B)(iii)).
Guzman was convicted under part 2 of § 130.25, under which a person is guilty
of rape in the third degree when, “being twenty-one years old or more, he or she
engages in sexual intercourse with another person to whom the actor is not
married less than seventeen years old.” § 130.25-2. This statutory definition is
consistent with a “common sense” meaning of the offense of statutory rape. See
United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005). The district
court did not err in applying § 2L2.1(b)(1)(A)(ii).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Guzman
challenges the constitutionality of 8 U.S.C. § 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. This court has held that this issue is
“fully foreclosed from further debate.” United States v. Pineda-Arrellano,
492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-
6202).
AFFIRMED.
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