                                                   In the                        United States Court of Appeals
                                                                                          Fifth Circuit

                          United States Court of Appeals                              FILED
                                                                                   August 11, 2006
                                        for the Fifth Circuit
                                             _______________                   Charles R. Fulbruge III
                                                                                       Clerk
                                                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,                       Jaime Robles-Enriquez was convicted of il-
  Circuit Judges.                                       legally reentering the United States after an
                                                        aggravated felony conviction, in violation of 8
JERRY E. SMITH, Circuit Judge:*                         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
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                        U.S.S.G. § 2L1.2(b)(1)(A)(ii). Bound by
termined that this opinion should not be published
and is not precedent except under the limited           recent precedent, we affirm.
circumstances set forth in 5TH CIR. R. 47.5.4.
                       I.                               or threatened use of physical force as an ele-
   Robles-Enriquez was twice convicted in               ment or fall within one of the enumerated of-
California of assault with a deadly weapon and          fenses. See Calderon-Pena, 383 F.3d at 256.
by means of force likely to produce great
bodily injury. After both offenses he was de-               At oral argument, the government conced-
ported to Mexico and on both occasions il-              ed that Robles-Enriquez’s conviction does not
legally reentered the country. On September             qualify as a crime of violence under the “use of
16, 2004, he pleaded guilty to illegal reentry of       physical force as an element of the offense”
an alien following an aggravated felony con-            prong of § 2L1.2, despite the government’s
viction. The presentence report recom-                  reliance on this argument in the district court
mended that Robles-Enriquez receive a six-              and in its brief on appeal. Given this conces-
teen-level enhancement for his prior convic-            sion, we need not consider whether, under cas-
tions based on the “crime of violence” provi-           es such as United States v. Vargas-Duran, 356
sion in § 2L1.2. The district court accepted            F.3d 598 (5th Cir. 2004) (en banc), and Cal-
the recommendation over Robles-Enriquez’s               deron-Pena, the underlying statute of convic-
objection.                                              tion has use of force as an element.

                        II.                                The government does argue, however, that
   Because Robles-Enriquez raised the issue in          Robles-Enriquez’s conviction qualifies as “ag-
the district court, our review is de novo. See          gravated assault” within the meaning of the
United States v. Calderon-Pena, 383 F.3d                comment to § 2L1.2, and thus it is an enumer-
254, 256 (5th Cir. 2004) (en banc), cert. de-           ated offense. This court recently held, in an-
nied, 125 S. Ct. 932 (2005). If an alien con-           other case involving the same California stat-
victed of illegal reentry into the United States        ute, that the government is correct. See Unit-
following removal committed a crime of vio-             ed States v. Sanchez-Ruedas, 452 F.3d 409,
lence before removal, he is subject to a six-           412-14 (5th Cir. 2006). We are bound by that
teen-level enhancement. See § 2L1.2(b)(1)-              decision, so the enhancement must be upheld.
(A)(ii). The relevant commentary provides:
                                                                             III.
   ‘Crime of violence’ means any of the fol-               Robles-Enriquez preserves two arguments
   lowing: murder, manslaughter, kidnaping,             for further review, even though he concedes
   aggravated assault, forcible sex offenses,           we cannot currently afford him relief because
   statutory rape, sexual abuse of a minor,             of binding precedent. We address each in turn.
   robbery, arson, extortion, extortionate ex-
   tension of credit, burglary of a dwelling, or                               A.
   any offense under federal, state, or local              Robles-Enriques claims the district court
   law that has as an element the use, attempt-         abused its discretion by requiring him to co-
   ed use, or threatened use of physical force          operate in the collection of a DNA sample as
   against the person of another.                       a condition of supervised release. While this
                                                        appeal was pending, we decided United States
Id. cmt. n.1(B)(iii). For Robles-Enriquez’s             v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th
sentence enhancement to be proper, his of-              Cir. 2005), which holds that an identical claim
fense must either have the use, attempted use,          was not ripe because the Bureau of Prisons


                                                    2
(“BOP”) could attempt to collect the sample            statute, which would, together, have required
before the start of the supervised release peri-       a different result here. See, particularly,
od, while the defendant was still in custody.          People v. Colantuono, 865 P.2d 704, 709
See also United States v. Carmichael, 343              (Cal. 1994), and People v. Williams, 29 P.3d
F.3d 756, 761-62 (5th Cir. 2003). “Because it          197, 204 (Cal. 2001). Accordingly, it appears
is speculative at this juncture whether the BOP        that en banc reconsideration of both this deci-
will collect [defendant’s] DNA sample while            sion and Sanchez-Ruedas may be appropriate.
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


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