USA vs. Estrada-Rodriguez, (5th Cir. 2004)

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED October 20, 2004 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 03-41714 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ENRIQUE ESTRADA-RODRIGUEZ, also known as Enrique Jimenez-Abarran, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-741-1 Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM: * Enrique Estrada-Rodriguez (Estrada) challenges his conviction and sentence for having been found unlawfully in the United States subsequent to deportation, a violation of 8 U.S.C. § 1326. As an initial matter, Estrada argues that the § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey , 530 U.S. 466 (2000). Estrada concedes that this issue is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998), but he seeks to preserve it for further review. This court must follow the precedent in Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” United States v. Dabeit , 231 F.3d 979, 984 (5th Cir. 2000) (internal quotation marks and citation omitted). EstradaÂ’s conviction is AFFIRMED.

Estrada argues that the district court incorrectly used his prior Illinois conviction for aggravated battery of a child to increase his base offense level by 16 levels under U.S.S.G. § 2L1.2. Because Estrada raises this argument for the first time on appeal , the district court§ 2L1.2 is reviewed for “plain error.” See United States v. Gracia-Cantu , 302 F.3d 308, 313 (5th Cir. 2002); see also United States v. Calverley , 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc)(citing United States v. Olano , 507 U.S. 725, 731-37 (1993)). Estrada argues that aggravated battery of a child, 720 I LL .

C OMP . S TAT . 5/12-4.3 (1995), is not a crime of violence for purposes of U.S.S.G. § 2L1.2. Pertinent commentary to U.S.S.G. § 2L1.2 provides that § 2L1.2, comment. (n.1(B)(iii).

Illinois’s aggravated battery of a child statute does not require any bodily contact; it requires instead that the defendant intentionally or knowingly “cause[] great bodily harm or permanent disability or disfigurement.” See 720 I LL . C OMP .

S TAT . 5/12-4.3. The statute provides that the harm may be effected § 2L1.2. See United States v. Calderon-Pena , F.3d, 2004 WL 1888407 at *4 (5th Cir. 2004)(en banc). Accordingly, the district courtÂ’s 16-level enhancement of EstradaÂ’s offense level was clear error.

Moreover, the district court§ 2L1.2 was dramatic, this court will exercise its discretion to correct the error. See Gracia-Cantu , 302 F.3d at 313. Accordingly, Estrada§ 2L1.2. CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED FOR RESENTENCING.

GARZA, Circuit Judge, dissenting in part: Since I continue to believe that Vargas-Duran , Sarmiento- Funes and Calderon-Pena were wrongly decided, see United States v. Vargas-Duran , 356 F.3d 598, 610-16 (5th Cir. 2004) (Garza, J. dissenting); United States v. Calderon-Pena , 283 F.3d 254 (5th Cir. 2004) (Garza, J. dissenting) United States v. Sarmiento- Funes , 374 F.3d 336, 346-47 (5th Cir. 2004) (Garza, J. dissenting), I respectfully dissent in part.

No. 03-41714

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