United States v. Estrada-Villalobos

* 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this opinion should not be published and is not precedent except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 19, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40522
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON ESTRADA-VILLALOBOS, also known as Samuel Arebalos-Herrera,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-1012-1
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Ramon Estrada-Villalobos (Estrada) appeals the sentence
imposed following his plea of guilty to being in the United
States illegally after deportation. Estrada’s sentence was
increased due to a prior conviction for the Florida felony of
aggravated battery.
Estrada contends that his Florida conviction was not a crime
of violence (COV) under the Sentencing Guidelines because the
conviction could have resulted from mere contact with a weapon,
without harm or the use of force. A “conviction for aggravated

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battery under [this] specific subsection of Florida law qualifies
as a COV because it has as an element at least a threatened use
of force” because touching with a weapon constitutes “either
actual or threatened use of physical force.” United States v.
Dominguez, 479 F.3d 345, 349 (5th Cir. 2007).
Estrada also challenges, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of felony and aggravated felony convictions
as sentencing factors rather than elements of the offense that
must be found by a jury.
Estrada’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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). Estrada 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 Government’s motion to supplement the record is DENIED.
AFFIRMED.

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