United States v. Garcia-Gonzalez , 168 F. App'x 564 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-40490
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE GARCIA-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1064-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Garcia-Gonzalez appeals his guilty-plea
conviction and sentence for being unlawfully present in the
United States after deportation without consent of the Attorney
General or the Secretary of Homeland Security. He argues that
the district court erred in enhancing his sentence based on his
Texas prior conviction for kidnapping under U.S.S.G. § 2L1.2.
Because he did not raise this issue in the district court, review
is limited to plain error. See United States v. Garcia-Mendez,
*
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this opinion should not be published and is not precedent except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. 05-40490
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420 F.3d 454, 456 (5th Cir. 2005). Under § 2L1.2(b)(1)(A)(ii), a
defendant’s base offense level is increased by 16 levels if he
was previously deported after being convicted of a crime of
violence. Kidnapping is one of the enumerated offenses listed in
the application notes to § 2L1.2 as a crime of violence.
§ 2L1.2, comment. (n.1(B)(iii)). A prior conviction will qualify
as a crime of violence if it is specifically enumerated in the
commentary definition, regardless of whether it has the use of
force as an element. United States v. Izaguirre-Flores, 405 F.3d
270, 273-75 (5th Cir.), cert. denied, 126 S. Ct. 253 (2005). We
use a “common sense approach” to determine whether a defendant’s
offense qualifies as an offense enumerated in § 2L1.2, comment.
(n.1(B)(iii)). Id.
Garcia-Gonzalez has not shown that the district court’s
increase in his offense level based on his prior Texas kidnapping
conviction pursuant to § 2L1.2 was a “clear or obvious” error.
Under Texas law, a person commits the offense of kidnapping if he
“intentionally or knowingly abducts another person.” TEX. PENAL
CODE § 20.03(a)(2005). The elements of the Texas kidnapping
offense are consistent with the ordinary, contemporary, and
common understanding of the term as defined by Black’s Law
Dictionary. The district court’s determination that Garcia-
Gonzalez’s offense level should be increased based on his prior
kidnapping offense under § 2L1.2 was not a “clear or obvious”
No. 05-40490
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error. See Izaguirre-Flores, 405 F.3d at 273-75; Garcia-Mendez,
420 F.3d at 456.
Garcia-Gonzalez argues that 8 U.S.C. § 1326(b) is
unconstitutional. He acknowledges that this argument is
foreclosed by Almendarez-Torres, 523 U.S. 224, 235 (1998), but
raises the argument to preserve it for further review. We have
“repeatedly rejected arguments like the one made by [Garcia-
Gonzalez] and . . . held that Almendarez-Torres remains binding
despite Apprendi[ v. New Jersey, 530 U.S. 466 (2000).]” United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005).
AFFIRMED.