          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                 FILED
                                                                 May 9, 2008
                               No. 07-40777
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

v.

EDWARDO MARIO BARRIOS,

                                           Defendant-Appellant.


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 1:07-CR-7-ALL


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Edwardo Mario Barrios (Barrios) pleaded guilty to illegally attempting to
reenter the United States following deportation after having been convicted of
an aggravated felony.      Barrios was sentenced to a 75-month term of
imprisonment and a two-year term of supervised release. Barrios argues that
his prior California convictions for robbery and witness intimidation are not
crimes of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii).



      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-40777

      Barrios’s conviction for robbery in violation of CAL. PENAL CODE § 211 is
a crime of violence under § 2L1.2 because the statutory definition of the offense
“falls within the generic or contemporary meaning of robbery.” United States v.
Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008).         Thus, the sentence
enhancement based on Barrios’s robbery conviction was proper, and the district
court properly calculated the advisory guidelines range. As it is unnecessary for
us to determine whether Barrios’s conviction for witness intimidation is a crime
of violence, we forego consideration of that issue.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Barrios challenges
the constitutionality of § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of the offense that
must be found by a jury. This argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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