                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 10, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 05-2244
          v.                                       District of New Mexico
 RICARDO VACA-PEREZ,                             (D.C. No. CR-05-00392-JP)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.



      Ricardo Vaca-Perez pleaded guilty to illegally reentering the United States

after deportation for an aggravated felony in violation of 8 U.S.C. §§ 1326(b)(2).

The district court concluded that his previous felony, a state court conviction for



      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
committing lewd and lascivious acts with a child, was a crime of violence, and the

court enhanced Mr. Vaca-Perez’s offense level with a net upward adjustment of

thirteen levels and sentenced him to a prison term of forty-one months. On

appeal, Mr. Vaca-Perez argues that (1) the district court erred in determining that

the prior felony was a crime of violence; (2) the court erred under United States v.

Booker, 543 U.S. 220 (2005), by increasing his sentence based on the fact, not

proved to a jury, that the prior conviction was a crime of violence; (3) the court

abused its discretion by imposing an unreasonable sentence; and (4) the Supreme

Court should reverse Almendarez-Torres v. United States, 523 U.S. 224 (1998).

We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we

AFFIRM.

                                   I. Background

      A border patrol agent encountered and arrested Mr. Vaca-Perez in Luna

County, New Mexico, on December 29, 2004. Mr. Vaca-Perez is a Mexican

citizen who was convicted in California in 1998 for committing lewd and

lascivious acts with a child, was deported, and subsequently reentered the United

States illegally. Mr. Vaca-Perez pleaded guilty to the reentry charge, and a

probation officer prepared a presentence report recommending that Mr. Vaca-

Perez—whose base offense level was eight—receive a sixteen-level upward

adjustment because the prior felony conviction was a crime of violence, and a


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three-level downward adjustment for acceptance of responsibility, resulting in an

adjusted offense level of twenty one.

      At sentencing, the district court ruled, over Mr. Vaca-Perez’s objection,

that the prior offense was a crime of violence. The court sentenced Mr. Vaca-

Perez to forty-one months’ imprisonment, a term at the bottom of the Sentencing

Guidelines range.

                                  II. Discussion

1. The district court properly held that the prior felony was a crime of violence

      Mr. Vaca-Perez argues that his prior criminal conviction for committing

lewd and lascivious acts with a child was not a crime of violence because the

offense did not include, as a necessary element, the use, attempted use, or

threatened use of force. Mr. Vaca-Perez interprets Shepard v. United States, 544

U.S. 13, 125 S. Ct. 1254, 1262 (2005), as standing for the proposition that unless

force was unambiguously an element of the prior offense, a sentencing court may

only consider the charging documents in deciding whether the prior felony

offense was a crime of violence. Therefore, he argues, the absence of a force

element in California Penal Code § 288(a), under which he was previously

convicted, should have prevented the court’s finding of a crime of violence and

the concomitant sentencing enhancement.




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      Mr. Vaca-Perez’s argument is precluded by a November 2003 amendment

to the Sentencing Guidelines, which included sexual abuse of a minor in the list

of offenses that are always crimes of violence for sentencing. U.S. Sentencing

Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (2005). In explaining the 2003

amendment, the Sentencing Commission noted that “[t]he previous definition

often led to confusion over whether the specified offenses listed in that definition,

particularly sexual abuse of a minor and residential burglary, also had to include

as an element of the offense ‘the use, attempted use, or threatened use of physical

force against the person of another.’” U.S. Sentencing Guidelines Manual app. C

(vol. II), amend. 658, at 401-02 (Supp.2003). After the amendment, “the

enumerated offenses are always classified as ‘crimes of violence,’ regardless of

whether the prior offense expressly has as an element of the use, attempted use, or

threatened use of physical force against the person of another.” Id. at 402.

      We held in Munguia-Sanchez, 365 F.3d 877 (10th Cir. 2004), that the

enumerated offenses in § 2L1.2 do not require proof of the use or threatened use

of force for sentencing adjustment purposes. Id. at 880-81. Accordingly, the

district court correctly found that Mr. Vaca-Perez’s prior offense was a crime of

violence. Accord United States v. Medina-Maella, 351 F.3d 944, 946-47 (9th Cir.

2003) (concluding that a conviction under § 288(a) of the California Penal Code

was a prior conviction for a crime of violence under § 2L1.2).


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2. The court did not commit constitutional Booker error

      Mr. Vaca-Perez argues that a district court may not find additional facts

regarding a prior conviction that will significantly increase a sentence unless

those facts are alleged in the indictment, admitted by the defendant, or proved to

the jury beyond a reasonable doubt. He concedes that the district court could

properly enhance his sentence because his prior felony offense was an aggravated

felony under U.S.S.G. § 2L1.2(b)(1)(c), but he argues that the sixteen-level

enhancement for a crime of violence required additional fact-finding prohibited

by United States v. Booker, 543 U.S. 220 (2005).

      While Booker does require that certain facts be found by a jury or admitted

by a defendant, that requirement does not apply to the fact of a defendant’s prior

conviction nor to the district court’s characterization of that prior offense as a

crime of violence. United States v. Austin, 426 F.3d 1266, 1270 (10th Cir. 2005).

The characterization of prior convictions as crimes of violence is “a question of

law and not fact and therefore does not implicate the Sixth Amendment for the

purpose of requiring the characterization of the offense to be charged in the

indictment and proven to a jury.” Id. As discussed above, Mr. Vaca-Perez’s

previous conviction was, on its face, a crime of violence. Consequently, the

district court did not need to engage in any fact-finding to characterize it as such.

Therefore, Mr. Vaca-Perez’s rights were not violated.


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3. The court did not abuse its discretion by imposing an unreasonable sentence

      Mr. Vaca-Perez argues that the Sentencing Guidelines allow sentences for

illegal reentry that are unreasonably severe. In support of his argument, he cites

United States v. Trujillo-Terrazas, 405 F.3d 814, 821 (10th Cir. 2005), as

standing for the proposition that a sixteen-level increase for a crime of violence

calls into question the fairness, integrity, and public reputation of judicial

proceedings. And Mr. Vaca-Perez claims that the Guidelines’ sixteen-level

enhancement for a crime of violence classifies murderers and rapists in the same

category as immigrants who illegally reenter the United States regardless of the

violence actually employed in the prior felony offense, and that the Guidelines are

especially unreasonable when compared to the sentences imposed for similarly

situated offenders who commit far more violent offenses.

      When sentencing Mr. Vaca-Perez, the district court knew that Booker made

the Guidelines advisory and gave the court discretion to impose a sentence outside

the Guidelines range. In considering the factors set forth in 18 U.S.C. § 3553,

however, the court decided that a sentence within the range was reasonable.

While a Guidelines sentence is not per se reasonable, we have held that “a

sentence that is properly calculated under the Guidelines is entitled to a rebuttable

presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006) (internal quotation marks omitted). We have considered


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Appellants’ arguments and find no basis for concluding either that the district

court erred in calculating Mr. Vaca-Perez’s sentence or that the sentence imposed

was unreasonable.

4. Almendarez-Torres v. United States is binding law

      Mr. Vaca-Perez acknowledges that the Supreme Court decision in

Almendarez-Torres v. United States, 523 U.S. 224 (1998), is binding authority on

this Court. He challenges it merely to preserve the issue for possible review by

the Supreme Court.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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