                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                    UNITED STATES COURT OF APPEALS
                         for the Fifth Circuit                     December 9, 2005

                          _____________________                 Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-40447
                          _____________________



                        UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  VERSUS

                         JAVIER RAYA-ROMERO,
                   also known as Jose Raya-Romero,

                                                    Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                         (7:03-CR-1108-1)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

     On January 2, 2004, Javier Raya-Romero (“Raya-Romero”) pled

guilty   to   illegal   reentry   after    deportation   in   violation      of

8 U.S.C. § 1326(a) and (b). He was subsequently sentenced to a term

of forty-six months in prison, based in part on a sixteen-level

enhancement for a prior sex offense conviction1 under California

     *
      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this opinion should not be published and is not precedent except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.
     1
      The prior sex offense conviction consisted of two counts of
conviction, both arising out of the same incident, as discussed

                                     1
state law. He now appeals the judgment of the district court,

arguing (1) that the “felony” and “aggravated felony” provisions in

8 U.S.C. § 1326(b)(1) and (2) are unconstitutional, and (2) that

the district court misapplied the federal sentencing guidelines and

erred by finding that his prior sex offense conviction was a “crime

of violence” under § 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing

Guidelines Manual (“U.S.S.G.”). For the reasons stated below, we

affirm Raya-Romero’s conviction, vacate his sentence, and remand

for resentencing.

                                     I.

     Raya-Romero makes two arguments on appeal, one challenging his

conviction and the other challenging his sentence. He concedes that

the first must fail, and we find in his favor with respect to the

second because of the Government’s concessions.

                                     A.

     First, Raya-Romero argues that the “felony” and “aggravated

felony”   provisions   in   8     U.S.C.   §   1326(b)(1)   and     (2)   are

unconstitutional and that therefore his conviction cannot stand. He

acknowledges   that    existing     Supreme    Court   precedent,     namely

Almendarez-Torres v. United States, 523 U.S. 224 (1998), forecloses

this argument, but he contends that the precedent has been called

into doubt by Apprendi v. New Jersey, 530 U.S. 466 (2000), and he

raises the issue to preserve it for Supreme Court review. Apprendi


below.

                                     2
did not overrule the Supreme Court’s decision in Almendarez-Torres,

and we must follow that precedent “‘unless and until the Supreme

Court itself decides to overrule it.’” United States v. Bonilla-

Mungia, 422 F.3d 316, 318-19 (5th Cir. 2005) (quoting Hopwood v.

Texas, 84 F.3d 720, 722 (5th Cir. 1996)). Thus, Raya-Romero’s

constitutional challenge must fail, and we affirm his conviction.2

                                B.

     Second, Raya-Romero argues that the district court misapplied

the federal sentencing guidelines and erred by finding that his

prior sex offense conviction was a “crime of violence” under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Government concedes (1) that the

record does not support the district court’s finding that the prior

sex offense conviction was a crime of violence, (2) that the



     2
      In conjunction with his Almendarez-Torres challenge, Raya-
Romero also makes what amounts to a Booker challenge to his
sentence. United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005) was decided after the briefs in this
case were submitted, but Raya-Romero relies on Booker’s
predecessor, Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004), for the rule that was eventually
established in the later case. He contends that if the Supreme
Court were to overrule Almendarez-Torres and to extend Blakely to
the federal sentencing guidelines context, which it did in
Booker, 125 S. Ct. at 746, his sentence enhancement, which was
based on the factual existence of a prior conviction that was not
found by a jury beyond a reasonable doubt or admitted by him,
could not be upheld. But prior convictions are the exception in
the Booker rule. Id. at 756 (“Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” (emphasis added)).
This challenge too must fail.

                                3
district court committed plain error by making such a finding, and

(3) that Raya-Romero’s sentence should be set aside and the case

remanded for resentencing. We disagree that plain error is the

correct standard of review,3 but in light of the Government’s

concessions, we agree that Raya-Romero’s sentence should be vacated

and the case remanded for resentencing.

     U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for a sixteen-level

enhancement of a defendant’s offense level “[i]f the defendant

previously was deported, or unlawfully remained in the United

States, after[] a conviction for a felony that is . . . a crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003).4 The commentary to

that section states,

     “Crime of violence” means any of the following: murder,
     manslaughter, kidnapping, aggravated assault, forcible

     3
      The record demonstrates that in objecting to the
characterization of his prior sex offense conviction as a crime
of violence, Raya-Romero cited cases concerning U.S.S.G. § 4B1.2
instead of U.S.S.G. § 2L1.2, the guideline at issue in this case.
However, the record also demonstrates that Raya-Romero generally
objected at sentencing to the sixteen-level enhancement
recommended by the presentence report (“PSR”), and the PSR cited
the correct section of the sentencing guidelines when
recommending that enhancement. On these facts, we cannot say that
Raya-Romero failed to preserve the enhancement issue for review.
See United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000).
The district court was alerted to Raya-Romero’s objection to the
sixteen-level enhancement, and it was clear from the PSR which
section of the sentencing guidelines was applicable. See id.
Moreover, Raya-Romero did not argue that U.S.S.G. § 4B1.2 was the
applicable provision in his case; he merely cited cases involving
that section for the proposition that his prior sex offense
conviction was not a crime of violence.
     4
      The district court used the 2003 edition of the U.S.
Sentencing Guidelines Manual in sentencing Raya-Romero.

                                4
     sex offenses, statutory rape, sexual abuse of a minor,
     robbery, arson, extortion, extortionate extension of
     credit, burglary of a dwelling, or any offense under
     federal, state, or local law that has as an element the
     use, attempted use, or threatened use of physical force
     against the person of another.

U.S.S.G. § 2L1.2(b)(1)(A)(ii), cmt. 1(B)(iii). Raya-Romero was

previously convicted of “oral copulation, victim unconscious” and

“sexual penetration, victim unconscious” under sections 288a(f) and

289(d) of the California Penal Code, each of which can be committed

in one of four ways.5 He contends that neither offense has as an

element the use, attempted use, or threatened use of physical force

against the person of another, nor is either offense a forcible sex

offense. We do not decide those questions here. The Government

concedes that the record does not support the district court’s

crime of violence finding;6 therefore, we vacate Raya-Romero’s

     5
       “Oral copulation, victim unconscious” and “sexual
penetration, victim unconscious” can both be committed if the
victim meets one of the following conditions:
      (1) Was unconscious or asleep.
      (2) Was not aware, knowing, perceiving, or cognizant
      that the act occurred.
      (3) Was not aware, knowing, perceiving, or cognizant of
      the essential characteristics of the act due to the
      perpetrator’s fraud in fact.
      (4) Was not aware, knowing, perceiving, or cognizant of
      the essential characteristics of the act due to the
      perpetrator’s fraudulent representation that the oral
      copulation served a professional purpose when it served
      no professional purpose.
CAL. PENAL CODE §§ 288a(f), 289(d) (West 2001).
     6
      We note for the district court’s benefit that even   if the
Government had not conceded this point, remand would be
appropriate per Bonilla-Mungia, 422 F.3d 316. The record   on
appeal simply does not contain documents upon which this   Court
could rely to determine whether Raya-Romero’s conviction   was a

                                5
sentence and remand for resentencing.7

                                  II.

     For   the   foregoing   reasons,   Raya-Romero’s   conviction   is

AFFIRMED; his sentence is VACATED; and this matter is REMANDED for

resentencing in accordance with this opinion.




crime of violence. Id. at 319-21; see also United States v.
Gonzalez-Chavez, ___ F.3d ___, No. 04-40173, 2005 WL 3196524, at
*1-*2 (5th Cir. Nov. 30, 2005).
     7
      Raya-Romero argues in supplemental briefing that the
district court erred under Booker by applying the federal
sentencing guidelines in a mandatory fashion. Because we vacate
Raya-Romero’s sentence and remand for resentencing, we need not
address that issue here. Bonilla-Mungia, 422 F.3d at 321 n.6;
United States v. Alfaro, 408 F.3d 204, 210 n.2 (5th Cir. 2005).
On remand, the district court will not be bound by the
guidelines, but “must still carefully consider [them]” in
sentencing the defendant; Booker, 543 U.S. at____, 125 S. Ct. at
764-65; Alfaro, 408 F.3d at 210 n.2; United States v. Mares, 402
F.3d 511, 518-19 (5th Cir. 2005). And if appealed, the resulting
sentence will be reviewed for “unreasonableness” only. Booker,
543 U.S. at ____, 125 S. Ct. at 765; Alfaro, 408 F.3d at 210 n.2;
Mares, 402 F.3d at 518.

                                   6
