IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2009
No. 08-41071
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CELESTINO RIVERA-CASTANEDA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-383-ALL
Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Celestino Rivera-Castaneda (Rivera) appeals the 70-month sentence
imposed following his guilty plea to illegal reentry following a previous
deportation. He contends that the district court reversibly erred in applying the
U.S.S.G. § 2L1.2 enhancement to his sentence based upon his prior Texas
conviction for indecency with a child-contact, a violation of Texas Penal Code
§ 21.11(a)(1). He asserts that a violation of § 21.11(a)(1) does not constitute the
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-41071
enumerated offense of sexual abuse of a minor for purposes of the § 2L1.2
enhancement.
As Rivera acknowledges, this court has already addressed the issue of
whether a prior Texas conviction for indecency with a child, a violation of
§ 21.11(a)(1), constitutes sexual abuse of a minor for purposes of
§ 2L1.2(b)(1)(A)(ii). See United States v. Ayala, 542 F.3d 494, 495 (5th Cir.
2008), cert. denied, 129 S. Ct. 1388 (2009); United States v. Najera-Najera, 519
F.3d 509, 511-12 (5th Cir.), cert. denied, 129 S. Ct. 139 (2008); United States v.
Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). Because Rivera’s only
argument on appeal is foreclosed by this court’s precedent, the judgment of the
district court is AFFIRMED.
2