United States v. Angel-Cruz

* 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this opinion should not be published and is not precedent except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. 06-40165
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE MIGUEL ANGEL-CRUZ, also known as Jorge Miguel Angel Cruz-
Benitez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-822-ALL
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Jorge Miguel Angel-Cruz (Angel) appeals the 37-month prison
term imposed following his guilty-plea conviction of being
illegally present in the United States following deportation, in
violation of 8 U.S.C. § 1326(a) and (b). Angel argues that his
prior Florida offenses of aggravated battery and aggravated
assault are not crimes of violence and therefore the district
court erred when it enhanced his offense level under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). He also argues that the felony and

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No. 06-40165
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aggravated felony provisions of § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
subsequent Supreme Court decisions.
In United States v. Dominguez, 479 F.3d 345, 347-49 (5th
Cir. 2007), this court considered and rejected arguments similar
to those presented by Angel regarding his aggravated battery
conviction. As in Dominguez, 479 F.3d at 348-49, Angel’s
aggravated battery conviction is a crime of violence because it
had as an element at least a threatened use of force. The
district court therefore did not err when it increased Angel’s
offense level 16-levels pursuant to § 2L1.2(b)(1)(A)(ii). As the
district court properly determined that Angel’s aggravated
battery conviction is a crime of violence, we need not consider
whether Angel’s aggravated assault conviction is a crime of
violence.
Angel’s constitutional challenge to § 1326(b) is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Angel 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). Angel 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.

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The district court’s judgment is AFFIRMED.

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