United States v. Tejada-Calderon , 234 F. App'x 211 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2007
Charles R. Fulbruge III
Clerk
No. 06-40912
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO EGARDO TEJADA-CALDERON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1410-1
Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Mauricio Egardo Tejada-Calderon (Tejada), who pleaded
guilty to one count of illegal reentry, in violation of 8 U.S.C.
§ 1326, appeals the forty-six-month sentence he received on remand
for resentencing. He argues that the district court erred in
assessing a sixteen-level increase, pursuant to U.S.S.G.
§ 2L1.2(a), based on the determination that he had a prior
conviction for a crime of violence. Specifically, he contends that
his Indiana felony battery conviction was not a crime of violence
*
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this opinion should not be published and is not precedent except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.
because it was neither an enumerated offense nor had as an element
the use of force.
This court reviews de novo the district court’s
interpretation of the Sentencing Guidelines. United States v.
Sarmiento-Funes, 374 F.3d 336, 338 (5th Cir. 2004). Tejada’s
state-court indictment demonstrated that he was convicted of felony
battery with a deadly weapon, in violation of INDIANA CODE § 35-42-2-
1(a)(3). As Tejada argues, the Indiana statute does not speci-
fically require the use of force and can be committed by an
offensive touching. Nevertheless, as the Government argues, “the
touching of an individual with a deadly weapon creates a sufficient
threat of force to qualify as a crime of violence.” United States
v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007); see also United
States v. Treto-Martinez, 421 F.3d 1156, 1157-60 (10th Cir. 2005),
cert. denied, 126 S. Ct. 1089 (2006). Accordingly, Tejada’s con-
viction was one for a crime of violence under the residual
definition, and the sixteen-level enhancement was appropriate. See
id.; § 2L1.2(a).
Additionally, Tejada challenges the constitutionality of
8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. He raised the same
claim, unsuccessfully, in the initial appeal in this case. As
Tejada concedes, the previous determinations of this court stand as
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the law of the case, and the issue will not be revisited. See
United States v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998).
The district court’s judgment is AFFIRMED.
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