United States v. Matute-Galdamez , 111 F. App'x 264 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 6, 2004
Charles R. Fulbruge III
Clerk
No. 03-41728
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO MATUTE-GALDAMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-853-1
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Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mauricio Matute-Galdamez challenges his conviction and
sentence for having been found unlawfully in the United States
subsequent to deportation, a violation of 8 U.S.C. § 1326(b)(2).
As an initial matter, Matute-Galdamez argues that the “felony”
and “aggravated felony” provisions of § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). Matute-Galdamez concedes that this issue is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
but he seeks to preserve it for further review. This court must
*
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this opinion should not be published and is not precedent except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. 03-41728
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follow the precedent in Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it.” Hopwood v.
State of Tex., 84 F.3d 720, 722 (5th Cir. 1996). Matute-
Galdamez’s conviction is AFFIRMED.
Matute-Galdamez argues that the district court incorrectly
increased his base offense level by 16 levels on the basis of his
prior conviction for aggravated sexual battery, an offense the
court deemed to be a crime of violence within the meaning of
U.S.S.G. § 2L1.2. Because Matute-Galdamez raises this argument
for the first time on appeal, the sentence imposed by the
district court, based on the enhancement, should be reviewed
under the plain error standard. See United States v.
Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).
Matute-Galdamez argues that KAN. STAT. ANN. § 21-3518 (2000),
aggravated sexual battery, is not a crime of violence. A crime
of violence is defined as (I) “an offense . . . that has an
element the use, attempted use, or threatened use of physical
force against the person of another; and (II) includes . . .
forcible sex offenses.” U.S.S.G. § 2L1.2, comment. (n.
1(B)(ii)(I) and (II)). The use of force “requires that a
defendant intentionally avail himself of that force.” United
States v. Vargas-Duran, 356 F.3d 598, 599 (5th Cir. 2004). The
question presented by this case is whether a sexual touching when
accompanied by an act of coercion or the knowledge that the
victim did not have the capacity to consent to the sexual act is
No. 03-41728
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a crime of violence. In interpreting a similar Missouri sexual
assault statute, this court held that such an act does not
require the use of physical force against the victim as required
under Vargas-Duran. United States v. Sarmiento-Funes, 374 F.3d
336, 339-42 (5th Cir. 2004). The reasoning of Sarmiento-Funes is
binding in this case because the Kansas statute also allows for
conviction for sexual intercourse “to which the victim assents,
though that assent is a legal nullity, such as when it is the
product of deception or a judgment impaired by intoxication.”
Id. at 341.
There is no foundation for the imposition of a 16-level
enhancement because Matute-Galdamez’s prior offense does not fall
within the sentencing guidelines’ definition of a crime of
violence. The error is plain and must be corrected because the
erroneous sentence affects Matute-Galdamez’s substantial rights
and impugns the fairness and integrity of judicial proceedings.
See Gracia-Cantu, 302 F.3d at 313. Accordingly, Matute-
Galdamez’s sentence is VACATED and the case is REMANDED to the
district court for resentencing in conformity with Sarmiento-
Funes.
CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED FOR
RESENTENCING.
No. 03-41728
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EMILIO M. GARZA, Circuit Judge, dissenting in part:
For the reasons expressed in my dissents in Vargas-Duran
and Sarmiento-Funes, I continue to believe that Vargas-Duran and
Sarmiento-Funes were wrongly decided. See United States v.
Vargas-Duran, 356 F.3d 598, 610-16 (5th Cir. 2004) (Garza, J.
dissenting); United States v. Sarmiento-Funes, 374 F.3d 336, 346-
47 (5th Cir. 2004) (Garza, J. dissenting).