United States v. Robles-Enriquez

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-40388
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAIME ROBLES-ENRIQUEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 1:04-CR-707-ALL
_________________________
Before SMITH, BARKSDALE, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Jaime Robles-Enriquez was convicted of il-
legally reentering the United States after an
aggravated felony conviction, in violation of 8
U.S.C. § 1326(a) and (b). He appeals his
sentence, arguing that the district court im-
properly applied a guidelines enhancement
based on the mistaken conclusion that his con-
viction qualifies as a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Bound by
recent precedent, we affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published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
August 11, 2006
Charles R. Fulbruge III
Clerk

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I.
Robles-Enriquez was twice convicted in
California of assault with a deadly weapon and
by means of force likely to produce great
bodily injury. After both offenses he was de-
ported to Mexico and on both occasions il-
legally reentered the country. On September
16, 2004, he pleaded guilty to illegal reentry of
an alien following an aggravated felony con-
viction. The presentence report recom-
mended that Robles-Enriquez receive a six-
teen-level enhancement for his prior convic-
tions based on the “crime of violence” provi-
sion in § 2L1.2. The district court accepted
the recommendation over Robles-Enriquez’s
objection.
II.
Because Robles-Enriquez raised the issue in
the district court, our review is de novo. See
United States v. Calderon-Pena, 383 F.3d
254, 256 (5th Cir. 2004) (en banc), cert. de-
nied, 125 S. Ct. 932 (2005). If an alien con-
victed of illegal reentry into the United States
following removal committed a crime of vio-
lence before removal, he is subject to a six-
teen-level enhancement. See § 2L1.2(b)(1)-
(A)(ii). The relevant commentary provides:
‘Crime of violence’ means any of the fol-
lowing: murder, manslaughter, kidnaping,
aggravated assault, forcible sex offenses,
statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate ex-
tension of credit, burglary of a dwelling, or
any offense under federal, state, or local
law that has as an element the use, attempt-
ed use, or threatened use of physical force
against the person of another.
Id. cmt. n.1(B)(iii). For Robles-Enriquez’s
sentence enhancement to be proper, his of-
fense must either have the use, attempted use,
or threatened use of physical force as an ele-
ment or fall within one of the enumerated of-
fenses. See Calderon-Pena, 383 F.3d at 256.
At oral argument, the government conced-
ed that Robles-Enriquez’s conviction does not
qualify as a crime of violence under the “use of
physical force as an element of the offense”
prong of § 2L1.2, despite the government’s
reliance on this argument in the district court
and in its brief on appeal. Given this conces-
sion, we need not consider whether, under cas-
es such as United States v. Vargas-Duran, 356
F.3d 598 (5th Cir. 2004) (en banc), and Cal-
deron-Pena, the underlying statute of convic-
tion has use of force as an element.
The government does argue, however, that
Robles-Enriquez’s conviction qualifies as “ag-
gravated assault” within the meaning of the
comment to § 2L1.2, and thus it is an enumer-
ated offense. This court recently held, in an-
other case involving the same California stat-
ute, that the government is correct. See Unit-
ed States v. Sanchez-Ruedas, 452 F.3d 409,
412-14 (5th Cir. 2006). We are bound by that
decision, so the enhancement must be upheld.
III.
Robles-Enriquez preserves two arguments
for further review, even though he concedes
we cannot currently afford him relief because
of binding precedent. We address each in turn.
A.
Robles-Enriques claims the district court
abused its discretion by requiring him to co-
operate in the collection of a DNA sample as
a condition of supervised release. While this
appeal was pending, we decided United States
v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th
Cir. 2005), which holds that an identical claim
was not ripe because the Bureau of Prisons

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(“BOP”) could attempt to collect the sample
before the start of the supervised release peri-
od, while the defendant was still in custody.
See also United States v. Carmichael, 343
F.3d 756, 761-62 (5th Cir. 2003). “Because it
is speculative at this juncture whether the BOP
will collect [defendant’s] DNA sample while
he is in custody, it remains conjecture whether
his DNA sample will be taken while he is on
supervised release.” Id. As Robles-Enriquez
admits, Riascos-Cuenu is indistinguishable
from this case.
B.
Robles-Enriquez argues that § 1326(b) is
unconstitutional under Apprendi v. New Jer-
sey, 530 U.S. 466 (2000). His argument is
foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1988), and by nu-
merous decisions that have properly held that
Almendarez-Torres remains good law even af-
ter Apprendi. See, e.g., United States v. Gar-
za-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). See also Ran-
gel-Reyes v. United States, 126 S. Ct. 2873
(2006).
The judgment of sentence is AFFIRMED.
DENNIS, Circuit Judge, specially concurring:
I acquiesce in the panel majority’s conclu-
sion that it is bound by the recent panel deci-
sion in United States v. Sanchez-Ruedas, 452
F.3d 409, 412-14 (5th Cir. 2006). Strictly
construed, however, it appears to me that we
are bound by the panel decision in United
States v. Torres-Diaz, 438 F.3d 529, 536-37
(5th Cir.), cert. denied, 126 S. Ct. 1487
(2006), and by the various opinions from the
California courts interpreting that state’s
statute, which would, together, have required
a different result here. See, particularly,
People v. Colantuono, 865 P.2d 704, 709
(Cal. 1994), and People v. Williams, 29 P.3d
197, 204 (Cal. 2001). Accordingly, it appears
that en banc reconsideration of both this deci-
sion and Sanchez-Ruedas may be appropriate.

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