Summary Calendar UNITED STATES OF AMERICA v. Luis Alberto Villa-Delgado

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-50677
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LUIS ALBERTO VILLA-DELGADO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-2486-ALL
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Luis Alberto Villa-Delgado appeals the 46-month
sentence imposed following his guilty-plea conviction for attempting to reenter
the United States illegally after having been removed. He contends that the
district court erred in ruling that his prior Idaho rape conviction constituted the
enumerated offense of statutory rape, triggering the 16-level enhancement
contained in U.S.S.G. § 2L1.2(b)(1)(A)(ii). He also contends that his sentence
exceeds the statutory maximum under 8 U.S.C. § 1326(a).
United States Court of Appeals
Fifth Circuit
F I L E D
February 8, 2008
Charles R. Fulbruge III
Clerk

-- 1 of 2 --

No. 07-50677
2
As Villa preserved his Guidelines argument in the district court, we review
that court’s interpretation of the Guidelines de novo. United States v. Carbajal-
Diaz, 508 F.3d 804, 807 (5th Cir. 2007). The Idaho statute of conviction
criminalizes sexual intercourse with a female younger than 18 years of age. The
charging document, to which Villa pleaded guilty, stated that the female victim
was 13 years of age. Thus, Villa’s crime may be narrowly defined as unlawful
sexual intercourse with a 13-year old female. See id. at 807-10. This crime is
encompassed within the generic, contemporary meaning of statutory rape.
Accordingly, application of the 16-level enhancement was proper. See id.
Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Villa challenges
the constitutionality of § 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. This challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1995). United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008) (No.
07-6202).
AFFIRMED.

-- 2 of 2 --