                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 06-30406
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR 05-0183 WFN
JOSE BOLANOS-HERNANDEZ,
                                             OPINION
             Defendant-Appellant.
                                      
      Appeal from the United States District Court
         for the Eastern District of Washington
     Wm. Fremming Nielsen, District Judge, Presiding

                 Argued and Submitted
           March 9, 2007—Seattle, Washington

                   Filed August 6, 2007

  Before: Betty B. Fletcher, Diarmuid F. O’Scannlain, and
           A. Wallace Tashima, Circuit Judges.

                Opinion by Judge Tashima




                           9389
             UNITED STATES v. BOLANOS-HERNANDEZ          9391
                         COUNSEL

Tracy A. Staab, Assistant Federal Public Defender, Spokane,
Washington, for the defendant-appellant.

Pamela J. Byerly, Assistant United States Attorney, Spokane,
Washington, for the plaintiff-appellee.


                         OPINION

TASHIMA, Circuit Judge:

   Jose Bolanos-Hernandez (“Bolanos”) appeals the sentence
imposed after he pleaded guilty to illegal re-entry into the
United States following deportation, in violation of 8 U.S.C.
§ 1326. He contends that his sentence should be reversed
because: (1) his prior conviction for assault with intent to
commit rape is not a crime of violence; and (2) the district
court improperly found that he was subject to a prior convic-
tion and that he had been deported subsequent to that convic-
tion. We have jurisdiction pursuant to 18 U.S.C. § 3742 and
28 U.S.C. § 1291.

   We hold that Bolanos’ prior California crime of assault
with intent to commit rape, in violation of Cal. Penal Code
§§ 220 and 261(a)(2), is a crime of violence under United
States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)
§ 2L1.2(b)(1)(A)(ii). We therefore affirm the sixteen-level
enhancement imposed by the district court. We also reject
Bolanos’ contention that he was sentenced based on facts
improperly found by the district court.

                STANDARD OF REVIEW

   We review the district court’s interpretation of the Guide-
lines, including its determination whether a prior conviction
9392         UNITED STATES v. BOLANOS-HERNANDEZ
is a “crime of violence” for purposes of U.S.S.G. § 2L1.2, de
novo. United States v. Rodriguez-Rodriguez, 393 F.3d 849,
856 (9th Cir. 2005). We also review the constitutionality of a
statute de novo, as it is a pure question of law. See United
States v. Carranza, 289 F.3d 634, 643 (9th Cir. 2002).

   FACTUAL AND PROCEDURAL BACKGROUND

  Bolanos, an alien, was indicted on October 18, 2005, on
one count of being an alien found in the United States follow-
ing deportation, in violation of 8 U.S.C. § 1326. He pleaded
guilty. During the plea colloquy, the district court asked
Bolanos if he had been deported on October 9, 2002, and
Bolanos answered that he had. The district court also asked if
he had subsequently entered the country without permission,
and Bolanos answered that he had.

   Bolanos’ presentence investigation report (“PSR”) recom-
mended increasing his base offense level by sixteen levels
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The PSR asserted
that Bolanos had been deported following a conviction for
assault with intent to commit rape, a crime of violence, com-
mitted in 2000 in California. Based on the adjusted offense
level, the PSR recommended a sentencing range of forty-one
to fifty-one months.

   At sentencing, the government provided several documents
related to Bolanos’ prior conviction, including: (1) the crimi-
nal complaint charging assault with intent to commit rape; (2)
Bolanos’ plea of no contest; (3) the minute order and commit-
ment; and (4) the transcript of Bolanos’ sentencing hearing.
The documents established that Bolanos was charged and
convicted of violating Cal. Penal Code §§ 220 and 261(a)(2).

  Section 220 provides that “[e]very person who assaults
another with intent to commit . . . rape . . . is punishable by
imprisonment in the state prison for two, four, or six years.”
             UNITED STATES v. BOLANOS-HERNANDEZ               9393
Cal. Penal Code § 220 (1999). Section 261(a) defines “rape”
as follows:

     Rape is an act of sexual intercourse accomplished
     with a person not the spouse of the perpetrator, under
     any of the following circumstances: . . . (2) Where
     it is accomplished against a person’s will by means
     of force, violence, duress, menace, or fear of imme-
     diate and unlawful bodily injury on the person or
     [sic] another.

Cal. Penal Code § 261(a)(2) (1999).

   At the district court sentencing hearing, the court found that
the California offense of assault with intent to commit rape is
categorically a crime of violence, holding it to be a “forcible
sex offense.” Consequently, the district court imposed the
sixteen-level enhancement. The court sentenced Bolanos to
forty-one months’ imprisonment, a three-year period of super-
vised release, and a $100 special assessment.

                         ANALYSIS

I.   Assault with Intent To Commit Rape Is a Crime of
     Violence.

   Even though the Guidelines were made advisory in United
States v. Booker, 543 U.S. 220 (2005), the district court’s
Guidelines calculation is still subject to appellate review, as
district courts must utilize the Guidelines, along with the sen-
tencing goals, when fashioning a sentence. United States v.
Reina-Rodriguez, 468 F.3d 1147, 1150 n.1 (9th Cir. 2006)
(quoting Booker, 543 U.S. at 259).

   [1] Section 2L1.2 of the Guidelines applies to a violation
of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2 cmt. statutory pro-
visions (2005). The Guidelines provide a base offense level of
eight, with the possibility of various increases in offense level
9394           UNITED STATES v. BOLANOS-HERNANDEZ
if the defendant previously was deported after certain qualify-
ing convictions. See U.S.S.G. § 2L1.2. Pursuant to
§ 2L1.2(b)(1)(A), an enhancement of sixteen levels applies if
Bolanos was deported after committing a crime of violence.
U.S.S.G. § 2L1.2(b)(1)(A)(ii).

  According to the Commentary, a “crime of violence” is
defined as:

      murder, manslaughter, kidnapping, aggravated
      assault, forcible sex offenses, statutory rape, sexual
      abuse of a minor, robbery, arson, extortion, extor-
      tionate 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, cmt. n.1(B)(iii) (emphasis added). “Forc-
ible sex offenses” are thus enumerated crimes of violence.
Attempts to commit such offenses are also counted as crimes
of violence. See id. § 2L1.2 cmt. n.5.

   To determine whether a defendant’s particular prior offense
qualifies as a crime of violence under § 2L1.2(b)(1)(A)(ii), we
look to the framework established by Taylor v. United States,
495 U.S. 575 (1990). See United States v. Pimentel-Flores,
339 F.3d 959, 968 (9th Cir. 2003). Taylor requires that the
court analyze the statutory definition of the offense rather
than the defendant’s underlying conduct. Taylor, 495 U.S. at
602. We compare the elements of a forcible sex offense with
the statutory elements of Bolanos’ prior offense of assault
with intent to commit rape. Cf. id. at 598-602. If the elements
of a forcible sex offense encompass California’s definition of
assault with intent to commit rape, assault with intent to com-
mit rape is “categorically” a crime of violence.1 See id. at 588.
  1
   If the statutory elements of Bolanos’ crime of conviction criminalize
both conduct that would qualify as a forcible sex offense and conduct that
                UNITED STATES v. BOLANOS-HERNANDEZ                     9395
In conducting this analysis, we read the state statutes accord-
ing to their interpretation by California state courts. See
Reina-Rodriguez, 468 F.3d at 1152.

   We first consider what conduct is encompassed by the term
“forcible sex offense.” We ascribe traditional crimes, such as
burglary or theft, their “generic, contemporary meaning,” by
reference to the definitions employed by most states as well
as guidance from LaFave’s treatise and the Model Penal
Code. See, e.g., Taylor, 495 U.S. at 598 (burglary); United
States v. Corona-Sanchez, 234 F.3d 449, 452-55 (9th Cir.
2000) (theft). Non-traditional offenses, on the other hand, are
defined according to their “ordinary, contemporary, and com-
mon meaning.” United States v. Lopez-Solis, 447 F.3d 1201,
1207 (9th Cir. 2006) (internal quotation marks omitted); see,
e.g., Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (interpreting
“crime of violence” under 18 U.S.C. § 16 by referencing the
natural connotation and ordinary meaning of the statutory lan-
guage setting forth the definition); Fernandez-Ruiz v. Gon-
zales, 466 F.3d 1121, 1125, 1132 (9th Cir. 2006) (en banc)
(following Leocal to interpret the meaning of “crime of
domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i)); Lopez-
Solis, 447 F.3d at 1207 (defining “sexual abuse of a minor”
under U.S.S.G. § 2L1.2 employing the dictionary definition of
“abuse” and the common understanding of the words “sexual”

would not, a court may additionally consider the terms of the plea agree-
ment or transcript of the colloquy between the judge and the defendant
confirming the plea’s factual basis in order to determine whether the prior
conviction was for a crime of violence. Shepard v. United States, 544 U.S.
13, 21, 26 (2005); see, e.g., Reina-Rodriguez, 468 F.3d at 1153-57 (apply-
ing so-called “modified categorical approach” to prior conviction for bur-
glary). In this case, however, there is no submitted plea colloquy, and the
terms of the plea agreement reveal no additional information regarding
Bolanos’ offense. As we may not rely on facts contained in the PSR,
United States v. Contreras-Salas, 387 F.3d 1095, 1098 (9th Cir. 2004), we
are limited to evaluating Bolanos’ offense using only “the fact of convic-
tion and the statutory definition of the prior offense,” derived in this case
from the criminal minute order and commitment. Taylor, 495 U.S. at 602.
9396         UNITED STATES v. BOLANOS-HERNANDEZ
and “minor”); United States v. Trinidad-Aquino, 259 F.3d
1140, 1145 (9th Cir. 2001) (interpreting “crime of violence”
under 18 U.S.C. § 16 by referencing the dictionary definition
and “ordinary, contemporary, and common parlance” of the
statutory language setting forth the definition).

   A “forcible sex offense” is not a traditional crime. The term
appears in the codes of only three states. See Cal. Welf. &
Inst. Code § 602(b)(2)(C); Cal. Penal Code § 264.1 (referring
to sexual intercourse or penetration by force or violence); Me.
Rev. Stat. Ann. tit. 17-a, §§ 108 cmt., 253(1)(A) (referring to
sexual intercourse compelled by force); N.H. Rev. Stat. Ann.
§ 627:4(II) (offering no additional description of the term). It
is not discussed at all by the Model Penal Code or LaFave’s
treatise. See generally Model Penal Code §§ 213.0-.6 (1981)
(discussing sexual offenses); Wayne R. LaFave, Substantive
Criminal Law 604-64 (2d ed. 2003) (discussing rape). “Forc-
ible sex offenses,” therefore, are defined according to the
ordinary, contemporary, and common meaning of the term.

   [2] But we need not formulate a comprehensive definition
of “forcible sex offenses” in order to resolve this appeal, as
we are satisfied that assault with intent to commit rape would
satisfy the ordinary, contemporary, and common meaning of
a “forcible sex offense.” First, rape is a “sex offense,” as the
term is commonly understood. See Black’s Law Dictionary
1112 (8th ed. 2004) (a “sexual offense” “involv[es] unlawful
sexual conduct”); cf. United States v. Beltran-Munguia, No.
06-30118, 2007 WL 1630165 (9th Cir. June 7, 2007) (in con-
sidering whether defendant’s conviction for second-degree
sexual abuse required force, assuming without discussion that
criminal acts of sexual intercourse or penetration would qual-
ify).

   [3] As the Sentencing Commission has indicated that
attempt crimes carry the same weight as completed crimes,
attempted rape would also qualify as a sex offense. See
U.S.S.G. § 2L1.2 cmt. n.5. Assault with intent to commit
                 UNITED STATES v. BOLANOS-HERNANDEZ                    9397
rape, in violation of California Penal Code §§ 220 (prohibit-
ing assaults with intent to commit certain felonies) and 261
(prohibiting rape), is considered by the California courts to be
an aggravated form of attempted rape. See People v. Holt, 937
P.2d 213, 248-49 (Cal. 1997) (stating that assault with intent
to commit rape would be the appropriate charge where there
has been an attempted but unsuccessful rape which included
an assault). As a form of attempted rape, assault with intent
to commit rape is a “sex offense.”

   The question remaining is whether the offense of assault
with intent to commit rape is “forcible.” Prior opinions of this
circuit provide a starting point for interpretation of this ele-
ment. Specifically, we have held that “forcible” connotes the
use of some force outside of the act of unwanted penetration.

   In Beltran-Munguia, we recently held that the Oregon
crime of sexual abuse in the second degree, which criminal-
izes nonconsensual intercourse or penetration,2 is not categori-
cally a forcible sex offense. 2007 WL 1630165, at *7. We
first noted that the plain language of the term suggested a
requirement of force. Id. Relying on an earlier case, which
had declared that the California crime of sexual battery was
not a forcible sex offense because it merely required ephem-
eral touching of the victim, we held that there must be an ele-
ment of force within the state statute to qualify it as
“forcible.” Id. (citing United States v. Lopez-Montanez, 421
F.3d 926, 929-30 (9th Cir. 2005)). Elsewhere, the opinion
rejected the possibility that the requisite amount of force
inheres in an act of penetration. Id. at *4. Because the Oregon
  2
   Under the Oregon statute:
      A person commits the crime of sexual abuse in the second degree
      when that person subjects another person to sexual intercourse,
      deviate sexual intercourse or . . . penetration of the vagina, anus
      or penis with any object other than the penis or mouth of the
      actor and the victim does not consent thereto.
Or. Rev. Stat. § 163.425.
9398         UNITED STATES v. BOLANOS-HERNANDEZ
statute did not require an independent showing of force above
and beyond the force inherent to penetration, the conviction
could not qualify as a categorical forcible sex offense. Id. at
*7. Under Beltran-Munguia, therefore, “forcible” sex offenses
criminalize acts that necessitate the use of force.

   On the other hand, “forcible” does not refer to the height-
ened level of force needed to qualify a crime under § 2L1.2’s
provision that a crime of violence includes “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 cmt. n.1(B)(iii). In con-
sidering whether an offense fits under this “catch-all” provi-
sion, we require that such force “ ‘must actually be violent in
nature.’ ” United States v. Ceron-Sanchez, 222 F.3d 1169,
1172 (9th Cir. 2000) (quoting Ye v. INS, 214 F.3d 1128, 1133
(9th Cir. 2000)), overruled on other grounds, Fernandez-Ruiz,
466 F.3d at 1132, 1134-35. It is a fundamental canon of statu-
tory construction that a text should not be construed so as to
render any of its provisions mere surplusage. See, e.g., TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001). Requiring forcible
sex offenses, one of the enumerated crimes of violence, to
contain the same level of force required to qualify a crime
under the catch-all provision would subsume “forcible sex
offenses” within the catch-all category, rendering the enumer-
ation superfluous. We reject this reading of the provision.

   The Sentencing Commission has disavowed such a result.
Prior to November 1, 2003, the definition of “crime of vio-
lence” contained within the commentary to § 2L1.2 was as
follows:

    (I) means an 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; and

    (II) includes murder, manslaughter, kidnapping,
    aggravated assault, forcible sex offenses (including
             UNITED STATES v. BOLANOS-HERNANDEZ                 9399
    sexual abuse of a minor), robbery, arson, extortion,
    extortionate extension of credit, and burglary of a
    dwelling.

U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002) (amended 2003).

  The preceding definition was amended in 2003 to its cur-
rent definition, which (among other changes) combines sub-
sections I and II, reverses their order, and changes the
connecting word from “and” to “or:”

    “Crime of violence” means any of the following:
    murder, manslaughter, kidnapping, aggravated
    assault, forcible sex offenses, statutory rape, sexual
    abuse of a minor, robbery, arson, extortion, extor-
    tionate 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.

Id. § 2L1.2 cmt. n.1(B)(iii) (2005).

   The Commission explained that the reason for the commen-
tary amendment was to

    clarif[y] the meaning of the term “crime of violence”
    by providing that the term “means any of the follow-
    ing: . . . .” The previous definition often led to confu-
    sion over whether the specified offenses listed in that
    definition, particularly sexual abuse of a minor and
    residential burglary, also had to include as an ele-
    ment of the offense “the use, attempted use, or
    threatened use of physical force against the person of
    another.” The amended definition makes clear that
    the enumerated offenses are always classified as
    “crimes of violence,” regardless of whether the prior
    offense expressly has as an element the use,
9400            UNITED STATES v. BOLANOS-HERNANDEZ
      attempted use, or threatened use of physical force
      against the person of another.

Id. app. C, vol. II, amd. 658, at 401-02 (Nov. 1, 2003);3 cf.
Asberry, 394 F.3d at 716-17 (citing Amendment 658 as evi-
dence of the Sentencing Commission’s intent that the Oregon
offense of statutory rape, which contains no requirement of
force, should be treated as a per se crime of violence).

   Forcible sex offenses therefore require more force than that
inherent to penetration but need not require violent force.
After examining California’s interpretation of assault with
intent to commit rape in light of the above considerations, we
conclude that it is “forcible” because California courts require
a showing that the defendant has used or attempted at least
some level of force on the victim.

  [4] A conviction for assault with intent to commit rape, in
violation of Cal. Penal Code §§ 220 and 261(a)(2), requires
proof of the elements of attempted rape plus those of assault.
People v. Pierce, 128 Cal. Rptr. 2d 397, 401 (Ct. App. 2002);
  3
    We recognize the tension between this statement by the Sentencing
Commission and our holdings in Beltran-Munguia and Lopez-Montanez,
which do require forcible sex offenses to contain an element of force.
Generally, we must follow the Commentary to the Guidelines in interpret-
ing Guidelines provisions, unless the Commentary “violates the Constitu-
tion or a federal statute, or is inconsistent with the Guidelines.” United
States v. Asberry, 394 F.3d 712, 716 n.5 (9th Cir.) (citing Stinson v. United
States, 508 U.S. 36, 38 (1993)), cert. denied, 126 S. Ct. 198 (2005). On
the other hand, of course, we are bound to follow our circuit’s precedent
in the absence of en banc action or a clearly irreconcilable ruling by a
higher court. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en
banc). Moreover, we note that the commentary to the Amendment is not
fully consistent with the plain language of “forcible sex offenses,” whose
ordinary and common meaning would almost certainly include the use of
some species of force. In any event, because we conclude that assault with
intent to commit rape does qualify as a forcible sex offense, Beltran-
Munguia and Lopez-Montanez do not dictate a result contrary to the Sen-
tencing Commission’s expressed intent in this case.
               UNITED STATES v. BOLANOS-HERNANDEZ                    9401
see also Comm. on Cal. Crim. Jury Instructions, California
Jury Instructions: Criminal (“CALJIC”) § 9.09 (2006) (jury
instructions for “Assault With Intent to Commit Certain Felo-
nies,” requiring proof that a person was assaulted and that the
assault was made with the specific intent to commit the asso-
ciated felony, such as rape). The jury instructions for assault
require the prosecution to prove the following elements:

      1. A person willfully [and unlawfully] committed
      an act which by its nature would probably and
      directly result in the application of physical force on
      another person;

      2. The person committing the act was aware of
      facts that would lead a reasonable person to realize
      that as a direct, natural, and probable result of this
      act that physical force would be applied to another
      person; and

      3. At the time the act was committed, the person
      committing the act had the present ability to apply
      physical force on the person of another.

CALJIC 9.00 (2006).4 Each of these elements specifically dis-
cusses the application of actual or attempted physical force on
the victim. Assault with intent to commit rape therefore
requires at least the attempted application of some physical
force.5
  4
    These instructions track Cal. Penal Code § 240, which defines “as-
sault” as “an unlawful attempt, coupled with a present ability, to commit
a violent injury on the person of another.” Bolanos was not charged with
violating § 240, but, as noted above, § 220 incorporates the elements of
assault.
  5
    Caselaw similarly focuses on the defendant’s intent to apply force,
holding that assault with intent to commit rape is complete once the defen-
dant “intends to use whatever force may be required” to commit the sexual
act against the will of the victim. People v. Maury, 68 P.3d 1 (Cal. 2003);
accord People v. Elam, 110 Cal. Rptr. 2d 185 (Ct. App. 2001).
9402           UNITED STATES v. BOLANOS-HERNANDEZ
   Further, the force appears to be in addition to that required
to complete intercourse or penetration. We have located no
case in which a defendant was convicted of assault with intent
to commit rape without conduct involving the application of
force above and beyond the force inherent to the threatened
act of penetration. For example, in People v. Davis, 896 P.2d
119 (Cal. 1995), the California Supreme Court held that there
was sufficient evidence the defendant had committed assault
with intent to commit rape where the victim testified that he
prevented her from opening the car door to leave, and he
aggressively fondled her breasts and crotch over her protests.
Id. at 142-43. Similarly, in People v. Bradley, 19 Cal. Rptr.
2d 276 (Ct. App. 1993), overruled on other grounds in People
v. Rayford, 884 P.2d 1369, 1381 (Cal. 1994), the Court of
Appeal found sufficient evidence of assault with intent to
commit rape where the defendant grabbed the victim’s arm,
forced her to hang up the phone, and led her by the arm to a
secluded area. Id. at 283; cf. James v. United States, 127
S. Ct. 1586, 1597 (2007) (holding that courts should examine
the ordinary case, rather than theoretical possibilities, when
evaluating whether a crime presented a serious potential risk
of injury under 18 U.S.C. § 924(e)(2)(B)(ii)); Gonzales v.
Duenas-Alvarez, 127 S. Ct. 815, 822 (2007) (“[T]o find that
a state statute creates a crime outside the generic definition of
a listed crime . . . requires a realistic probability, not a theoret-
ical possibility, that the State would apply its statute to con-
duct that falls outside the generic definition of a crime.”).6
  6
    Bolanos argues that his crime is not a categorical crime of violence
because one can violate California’s forcible rape statute, California Penal
Code § 261(a)(2), by accomplishing sexual intercourse through “fear of
immediate and unlawful bodily injury.” Therefore, the California statute
defining assault with intent to commit rape criminalizes conduct that
would not constitute force. See People v. Iniguez, 872 P.2d 1183, 1188
(Cal. 1994) (holding that fear of immediate and unlawful bodily injury
may be shown either by demonstrating a genuine and objectively reason-
able fear of harm or by demonstrating an “unreasonable fear . . . if the
accused knowingly takes advantage of that fear in order to accomplish
sexual intercourse” (internal quotation marks omitted)); People v. St.
               UNITED STATES v. BOLANOS-HERNANDEZ                    9403
   [5] Thus, because California caselaw suggests that the ordi-
nary conviction for violating California Penal Code §§ 220
and 261(a)(2) will involve the application or threat of force,
extrinsic to the force required for penetration, and because the
essential crime is an attempted rape, we hold that assault with
intent to commit rape is a forcible sex offense.

II.   The District Court Made No Improper Findings of
      Fact.

   Bolanos argues that the district court found that he was
removed subsequent to a prior conviction, extending its judi-
cial factfinding “beyond the conclusive judicial record of a
prior conviction,” even though Shepard, 544 U.S. 13, merely
authorized the district court to find the fact of the prior con-
viction. He contends that such additional factfinding raises a
constitutional question, and the court should avoid the consti-
tutional question by limiting Bolanos’ maximum sentence to
two years under 8 U.S.C. § 1326(a). Bolanos also contends
that the additional factfinding violated his rights to due pro-
cess and to notice and a jury trial. Finally, he argues that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), is

Andrew, 161 Cal. Rptr. 634, 644 (Ct. App. 1980) (discussing the preced-
ing possibility where the alleged rape took place in a mental institution,
the complainant was a patient, and the defendant was one of her caretak-
ers).
   We are unmoved by Bolanos’ argument because, as discussed above,
Bolanos was convicted of assault with intent to commit rape. He identifies
no case that would breathe life into his hypothetical scenario in which a
California court would convict a defendant of committing an assault with
intent to commit rape by means of instilling an unreasonable fear in the
victim. Cf. Duenas-Alvarez, 127 S. Ct. at 822 (the defendant “must at least
point to his own case or other cases in which the state courts in fact did
apply the statute in the special (nongeneric) manner for which he argues”).
Indeed, despite the courts’ language in Iniguez and St. Andrew, we have
found no case in which a defendant has been successfully convicted of
rape under § 261(a)(2) without a finding that he used or threatened force.
Cf. St. Andrew, 161 Cal. Rptr. at 645 (reversing conviction).
9404         UNITED STATES v. BOLANOS-HERNANDEZ
invalid; thus, he was entitled to a jury determination of the
fact of his prior conviction.

   [6] Bolanos’ argument with respect to the validity of
Almendarez-Torres is foreclosed by our precedent. See, e.g.,
United States v. Maciel-Vasquez, 458 F.3d 994, 995 (9th Cir.
2006) (concluding that we are bound to follow Almendarez-
Torres until the Supreme Court expressly overrules it), cert.
denied, 127 S. Ct. 2097 (2007). Further, we reject Bolanos’
contentions that the district court improperly conducted addi-
tional factfinding by finding that Bolanos had been deported
subsequent to the conviction. The record reveals that, during
the plea proceeding, Bolanos himself admitted that he had
been deported to El Salvador on October 9, 2002. He further
admitted that he had reentered the United States without first
receiving permission from the United States to do so. The dis-
trict court thus found no facts beyond the fact of the prior con-
viction. Bolanos’ Shepard- and Almendarez-Torres-based
arguments are unfounded.

                       CONCLUSION

   As an aggravated form of attempted rape, the California
crime of assault with intent to commit rape, in violation of
Cal. Penal Code §§ 220 and 261(a)(2) is a sex offense which
requires the attempted use of force. Bolanos’ California con-
viction for assault with intent to commit rape is therefore a
forcible sex offense, and was correctly designated a “crime of
violence” under U.S.S.G. § 2L1.2. The district court did not
improperly find any facts beyond the fact of Bolanos’ prior
conviction, and circuit precedent forecloses Bolanos’ conten-
tion that Almendarez-Torres is invalid. The district court’s
sentence is

  AFFIRMED.
