     Case: 17-41123      Document: 00514546458         Page: 1    Date Filed: 07/09/2018




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

                                                                               FILED
                                    No. 17-41123                            July 9, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk



UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

MIGUEL CABRERA-RANGEL,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:17-CR-198-1




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

       Miguel Cabrera-Rangel appeals the sentence imposed for assault on a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-41123

federal officer by physical contact. He was acquitted of assault on a federal
officer by physical contact inflicting bodily injury.

      Cabrera-Rangel contends that the district court ignored the jury’s verdict
and impermissibly relied on acquitted conduct. He maintains that the assess-
ment of his base offense level and the application of enhancements under
U.S.S.G. § 2A2.2(b)(2)(B) and (3)(E) violated the Sixth Amendment because the
determinations were premised on actions of which he was acquitted. Cabrera-
Rangel concedes that this claim is foreclosed by United States v. Watts,
519 U.S. 148, 157 (1997), and that we have held that Watts is valid after United
States v. Booker, 543 U.S. 220 (2005). He notes, however, that a reevaluation
of Watts is necessary because it did not address whether consideration of
acquitted conduct at sentencing violates the Sixth Amendment and that Watts
otherwise did not account for principles articulated in Booker and later
Supreme Court decisions.

      A panel of this court may not overrule another panel’s decision without
en banc reconsideration or a superseding contrary Supreme Court decision.
United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). We have
held that Watts remains valid following Booker, see United States v. Jackson,
596 F.3d 236, 243 n.4 (5th Cir. 2010); United States v. Farias, 469 F.3d 393,
399 (5th Cir. 2006), and the Court has not held otherwise, see Cunningham v.
California, 549 U.S. 270, 274−94 (5th Cir. 2007). Cabrera-Rangel thus has not
shown that the district court erred when it considered conduct of which he was
acquitted. See Farias, 469 F.3d at 399

      Cabrera-Rangel contends that his sentence is improper because the dis-
trict court relied on judge-found facts as to his acquitted conduct; Cabrera-
Rangel maintains that, if only the facts encompassed by the verdict were con-
sidered, his sentence is unreasonable. He asserts that his sentence violates


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                                No. 17-41123

the Sixth Amendment and should be vacated.

      As Cabrera-Rangel concedes, his claim is foreclosed.       Regardless of
whether Supreme Court precedent has foreclosed as-applied Sixth Amendment
challenges to sentences within the statutory maximum that are reasonable
only if based on judge-found facts, our precedent forecloses such contentions.
United States v. Hernandez, 633 F.3d 370, 374 (5th Cir. 2011).

      AFFIRMED.




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