            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                       No. 06-20450                             September 14, 2007

                                                                              Charles R. Fulbruge III
                                                                                      Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

ALEJANDRO NOLASCO-GOMEZ, also
known as Alejandro Gomez Nolasco,
also known as Alejandro Nolasco

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                            USDC No. 4:05-CR-419-ALL


Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
       Alejandro Nolasco-Gomez pleaded guilty to illegal re-entry and received
a 57-month sentence. He now appeals his sentence. For the reasons that follow,
we affirm.
       1.      Nolasco-Gomez first argues that the district court erred in its
               guideline calculation of 57 to 71 months because that calculation



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20450

         assumed that his prior conviction for indecency with a child was a
         crime of violence within the meaning of U.S.S.G. § 4A1.1(f). We
         agree. See United States v. Houston, 364 F.3d 243, 247–48 (5th Cir.
         2004).
               Although we normally remand when the district court errs in
         determining the Guideline range, we do not when the sentence
         given was not selected “as a result of” the incorrect Guideline
         calculation. See United States v. Duhon, 440 F.3d 711, 716 (5th Cir.
         2006) (citing 18 U.S.C. § 3742(f)), petition for cert. filed (May 18,
         2006) (No. 05-11144). Here, the district court imposed a sentence
         that was still within the correctly calculated guideline range and
         explained that independent of whether the defendant’s previous
         crimes were “crimes of violence,” he would impose the same
         sentence based on the circumstances of the defendant’s case. Under
         the facts presented here, the district court’s sentence was not given
         as a result of the incorrect Guideline calculation and was
         reasonable. Id.; see also United States v. Medina-Argueta, 454 F.3d
         479, 483 (5th Cir. 2006).
    2.   Nolasco-Gomez also argues that the “felony and “aggravated felony
         provisions” of 8 U.S.C. § 1326(b)(1) and (2) cannot constitutionally
         be applied to him. As he concedes, however, this argument is
         foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
         (1998).
AFFIRMED.




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