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

                                                                            FILED
                                                                           May 19, 2008
                                     No. 07-51087
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

LUIS NEVAREZ-PUENTES

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:07-CR-1043-1


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Luis Nevarez-Puentes appeals from his conviction of illegal reentry, in
violation of 8 U.S.C. § 1326. He contends the determination of whether his prior
offense of burglary of a vehicle constitutes a crime of violence under 18 U.S.C.
§ 16(b), so as to be considered an aggravated felony for guideline sentencing,
violates the Sixth Amendment, Separation of Powers doctrine, and Due Process
Clause. The Government moves for summary affirmance of the district court’s
judgment.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51087

      Section 16(b) provides, in relevant part: “The term ‘crime of violence’
means . . . any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of another
may be used in the course of committing the offense”. A district court makes a
legal determination, not a factual finding, when it decides whether an offense is
a crime of violence; there is no Sixth Amendment violation. See James v. United
States, 127 S. Ct. 1586, 1600 (2007) (construing whether a particular offense was
a violent felony for the Armed Career Criminal Act, which uses language very
similar to § 16(b)); Brieva-Perez v. Gonzales, 482 F.3d 356, 360 (5th Cir. 2007)
(“Section 16(b) plainly requires inquiry only into the ‘nature’ of the offense as it
poses the risk of use of force, and not into the facts underlying a particular
conviction.”).
      Nevarez’s separation-of-powers argument is unconvincing. In § 16(b),
Congress provided courts with the discretion to determine which prior offenses
were crimes of violence, and provided them with a general definition of what
constitutes such a crime. See Mistretta v. United States, 488 U.S. 361, 364
(1989).
      Nevarez contends § 16(b) does not provide fair warning of the
requirements of the law.      A defendant is entitled to some notice when a
sentencing enhancement will be sought for the commission of a crime of violence,
consistent with the Due Process Clause. See United States v. Howard, 444 F.3d
326, 327 (5th Cir. 2006) (holding that notice requirement was fulfilled by the
presentence report). Moreover, § 16(b) provides notice that certain classes of
offenses may result in more serious enhancements than others upon a
subsequent conviction. Finally, § 16(b) is not void for vagueness. See Kolender
v. Lawson, 461 U.S. 352, 357 (1983) (stating “void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited”).
      AFFIRMED. MOTION FOR SUMMARY AFFIRMANCE GRANTED.

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