United States v. Estrada-Borjas

* 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this opinion should not be published and is not precedent except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
April 4, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40739
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR ORLANDO ESTRADA-BORJAS, also known as Jose Luis
Marquez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-850-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Hector Orlando Estrada-Borjas appeals his conviction for
unlawful presence in the United States after deportation
following an aggravated felony conviction and his sentence. He
raises three issues in this appeal.
First, he argues that robbery as defined in California Penal
Code § 211 (§ 211 robbery) is not a crime of violence as defined
in U.S.S.G. § 2L1.2(b)(1) because it is broader than “the generic
contemporary meaning” of robbery, since it can be committed by

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inducing the fear that property will be damaged. He also asserts
that § 211 robbery is not a crime of violence under § 2L1.2(b)(1)
because it does not have as an element the use, attempted use, or
threatened use of physical force against a person.
This court need not resolve whether § 211 robbery is a crime
of violence because the amended information establishes that
Estrada-Borjas’ conviction for first-degree robbery under
California Penal Code §§ 211, 212.5, and 12022(a)(1) qualifies as
an enumerated offense because its elements required proof that
(1) Estrada-Borjas robbed “an inhabited dwelling house . . . or
the inhabited portion of any other building,” § 212.5; and (2) he
or an accomplice was armed with a firearm during the first-degree
robbery. § 12022(a)(1). Estrada-Borjas’ conviction for first-
degree robbery under §§ 211, 212.5, and 12022(a)(1) qualifies as
the enumerated offense of robbery “as that term is understood in
its ordinary, contemporary, [and] common meaning.” United States
v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir.), cert. denied,
126 S. Ct. 253 (2005) (brackets in original; internal quotation
marks and citation omitted); accord Taylor v. United States, 495
U.S. 575, 599 (1990). Moreover, Estrada-Borjas’ first-degree
robbery conviction under §§ 211, 212.5, and 12022(a)(1) had as an
element, at least, the threatened use of physical force against
the person of another. See § 2L1.2, comment. (n.1(B)(iii));
United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir.

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No. 05-40739
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2004). Thus, Estrada-Borjas’ prior first-degree robbery
conviction was a “crime of violence.”
Second, Estrada-Borjas argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(b)(2) are unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). Estrada-Borjas’ constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Estrada-Borjas 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.), cert. denied, 126 S. Ct. 298
(2005). Estrada-Borjas 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.
Finally, Estrada-Borjas argues for the first time on appeal
that the district court abused its discretion when it imposed a
condition of supervised release that requires him to cooperate in
the collection of his DNA. This claim is not ripe for review.
See United States v. Riascos-Cuenu, 428 F.3d 1100, 1100-01 (5th
Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-
8662). Therefore, this court lacks jurisdiction to review this
claim, and this portion of the appeal is dismissed.
CONVICTION AND JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

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