United States v. Galindo-Velasquez , 229 F. App'x 310 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2007
Charles R. Fulbruge III
No. 06-41514 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JHEFRY GALINDO-VELASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 7:06-CR-433
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Jhefry Galindo-Velasquez appeals his conviction of and sen-
tence for illegal reentry. He claims the district court erred by
enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
based upon its determination that his 2003 conviction under TEX.
*
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opinion should not be published and is not precedent except under the limited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. 06-41514
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PENAL CODE § 21.11(a) for indecency with a child was a crime of
violence.
The “sexual abuse of a minor” is a “crime of violence” under
§ 2L1.2(b)(1)(A)(ii). In United States v. Zavala-Sustaita, 214
F.3d 601 (5th Cir. 2000), we held that a violation of § 21.11(a)(2)
is “sexual abuse of a minor” as that term is used in its “ordinary,
contemporary, [and] common meaning.” Although Zavala-Sustaita in-
volved an enhancement imposed under a previous version of § 2L1.2,
its reasoning remains sound law and is applicable here. See United
States v. Izaguirre-Flores, 405 F.3d 270, 273-75 (5th Cir.) (quot-
ing Zavala-Sustaita, 214 F.3d at 604), cert. denied, 126 S. Ct. 253(2005)). Accordingly, the district court did not err in enhancing
Galindo’s offense level pursuant to § 2L1.2(b)(1)(A)(ii).
Galindo challenges the constitutionality of 8 U.S.C.
§ 1326(b)(1) and (2). That challenge is foreclosed by Almendar-
ez-Torres v. United States, 523 U.S. 224, 235 (1998). Although
Galindo contends that Almendarez-Torres was incorrectly decided and
that a majority of the Supreme Court would overrule it in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly re-
jected such arguments on the basis that Almendarez-Torres remains
binding. See Rangel-Reyes v. United States, 126 S. Ct. 2873(2006); United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 546 U.S. 919 (2005). Galindo properly concedes that
his argument is foreclosed in light of Almendarez-Torres and cir-
No. 06-41514
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cuit precedent, but he raises it here to preserve it for further
review.
AFFIRMED.