United States v. Vigil-Sanchez , 246 F. App'x 854 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-41313
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERARDO VIGIL-SANCHEZ, also
known as Everardo Sanchez-Vigil,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-98-ALL
Before GARWOOD, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Everardo Vigil-Sanchez(Vigil) appeals his guilty-plea
conviction and sentence for being unlawfully present in the United
States following removal. The district court enhanced Vigil’s
sentence based upon its finding that his prior California
conviction for unlawful sexual intercourse with a minor was a
conviction for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A).
*
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opinion should not be published and is not precedent except under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.
Vigil argues that the enhancement was improper because the statute
under which he was convicted sets the legal age for consent to
sexual activity at 18 years of age while the Model Penal Code and
the majority of the states set the legal age of consent for sexual
activity at 16 years of age or younger.
Vigil’s prior conviction was under CAL. PENAL CODE ANN. §
261.5(c) which proscribes “unlawful sexual intercourse with a minor
who is more than three years younger than the perpetrator.”
Section 261.5(a) provides that “unlawful sexual intercourse” is
that with a “minor” not married to the perpetrator, defining
“minor” as “a person under the age of 18 years” and “adult” as “a
person who is at least 18 years of age.”1 Under a common-sense
approach, Vigil’s conviction was for the enumerated offenses of
statutory rape and sexual abuse of a minor and, accordingly, a
crime of violence under § 2L1.2(b)(1)(A)(ii). See § 2L1.2,
comment. (n.1(b)(iii)); United States v. Acosta, 214 F.App’x 398
(5th Cir. 2007); United States v. Lopez-Garcia, 163 F.App’x 306
(5th Cir. 2006); United States v. Izaguirre-Flores, 405 F.3d 270,
275 (5th Cir. 2005); see also United States v. Hernandez-Castillo,
449 F.3d 1127, 1131 (10th Cir. 2006), cert. denied, 127 S.Ct. 936(2007) (§ 261.5(c)); United States v. Vargas-Garnica, 332 F.3d 471,
474 & n.1 (7th Cir. 2003) (§ 261.5(c)).
1
The complaint alleges Vigil was over 21 and the victim was
under 16.
2
Vigil also argues that the felony and aggravated felony
provisions contained in 8 U.S.C. § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). This
constitutional argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Vigil 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). Vigil 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.
3