United States v. Valdivia-De Arcos

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 26, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41245
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADAN VALDIVIA-DE ARCOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(1:05-CR-34-1)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Adan Valdivia-De Arcos (Valdivia)
challenges his conviction and sentence under 8 U.S.C. § 1326 for
being present in the United States illegally after having been
deported following conviction for an aggravated felony. He first
asserts that the district court erred by finding that his prior
Texas conviction for assault of a family member was a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Section 22.01(a)(1)
of the Texas Penal code criminalizes “intentionally, knowingly, or
recklessly caus[ing] bodily injury to another, including the

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person’s spouse.” As the statute provides several disjunctive
elements, we look to the indictment to determine which of them
Valdivia was convicted of having committed. United States v.
Calderon-Pena, 383 F.3d 254, 258 (5th Cir.)(en banc). The
indictment charged him with knowingly and intentionally causing
bodily injury to the victim, so his Texas assault offense was a
crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). See §
2L1.2, comment. (n.1(B)(iii)); United States v. Vargas-Duran, 356
F.3d 598, 600-02, 605-06 (5th Cir. 2004)(en banc); Calderon-Pena,
383 F.3d 254 at 258.
Valdivia next contends that Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), 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
rejected such arguments because Almendarez-Torres remains binding.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Valdivia 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.
The judgment of the district court is
AFFIRMED.

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