* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4.

1 The prior sex offense conviction consisted of two counts of conviction, both arising out of the same incident, as discussed

1 United States Court of Appeals

Fifth Circuit 

## FILED

December 9, 2005

Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS
for the Fifth Circuit

_____________________

No. 04-40447

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAVIER RAYA-ROMERO, also known as Jose Raya-Romero,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas

_________________________________________________________________ (7:03-CR-1108-1)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM: *

On January 2, 2004, Javier Raya-Romero ( “Raya-Romero”) pled

guilty to illegal reentry af ter deportation in violation of

8 U.S.C. § 1326(a) and (b). He was subsequently sentenced to a term

of forty-six months in prison, based in part on a sixteen-level

enhancement f or a prior sex offense conviction 1 under Californiabelow.

2

state law. He now appeals the judgment of the district court,

arguing (1) that the “felony” and “aggravated felony” provisions in

8 U.S.C. § 1326(b)(1) and (2) are unconstitutional, and (2) that

the district court misapplied the federal sentencing guidelines and

erred by finding that his prior sex offense conviction was a “crime

of violence” under § 2L1.2(b)(1)(A)(ii) of the U.S. S entencing

Guidelines Manual (“U.S.S.G.”). For the reasons stated below, we

affirm Raya-Romero’s conviction, vaca te his sentence, and remand

for resentencing.

I.

Raya-Romero makes two arguments on appeal, one challenging his

conviction and the other challenging his sentence. He concedes that

the first must fail, and we find in his favor with respect to the

second because of the Government’s concessions.

A.

First, Raya-Romero argues that the “felony” an d “aggravated

felony” provisions in 8 U .S.C. § 1326(b)(1) and (2) are

unconstitutional and that therefore his conviction cannot stand. He

acknowledges that existing Supreme Court precedent, namely

Almendarez-Torres v. United States

, 523 U.S. 224 (1998), forecloses

this argument, but he contends that the precedent has been called

into doubt by Apprendi v. New Jersey , 530 U.S. 466 (2000), and he

raises the issue to preserve it for Supreme Court review. Apprendi2 In conjunction with his Almendarez-Torres challenge, RayaRomero also makes what amounts to a Booker challenge to his

sentence. United States v. Booker , 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) was decided after the briefs in this case were submitted, but Raya-Romero relies on Booker ’s predecessor, Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), for the rule that was eventually established in the later case. He contends that if the Supreme

Court were to overrule Almendarez-Torres and to extend Blakely to the federal sentencing guidelines context, which it did in

Booker , 125 S. Ct. at 746, his sentence enhancement, which was based on the factual existence of a prior conviction that was not found by a jury beyond a reasonable doubt or admitted by him, could not be upheld. But prior convictions are the exception in

the Booker rule. Id. at 756 (“Any fact ( other than a prior

conviction ) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (emphasis added)). This challenge too must fail.

3 did not overrule the Supreme Court’s decision in Almendarez-Torres

,

and we must follow that precedent “‘unless and until the Supreme

Court itself decides to over rule it.’” U nited States v. BonillaMungia

, 422 F.3d 316, 318-19 (5th Cir. 2005) (quoting Hopwood v.

Texas

, 84 F.3d 720, 722 (5th Cir. 1996)). Thus, Raya-Romero’s

constitutional challenge must fail, and we affirm his conviction. 2

B.

Second, Raya-Romero argues that the district court misapplied

the federal sentencing guidelines and erred by finding that his

prior sex offense conviction was a “crime of violence” under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Government concedes (1) that the

record does not support the district court’s finding that the prior

sex offense conviction was a crime of violence, (2) that the3 The record demonstrates that in objecting to the

characterization of his prior sex offense conviction as a crime of violence, Raya-Romero cited cases concerning U.S.S.G. § 4B1.2 instead of U.S.S.G. § 2L1.2, the guideline at issue in this case.
However, the record also demonstrates that Raya-Romero generally objected at sentencing to the sixteen-level enhancement recommended by the presentence report (“PSR”), and the PSR cited the correct section of the sentencing guidelines when recommending that enhancement. On these facts, we cannot say that Raya-Romero failed to preserve the enhancement issue for review.

See United States v. Ocana , 204 F.3d 585, 589 (5th Cir. 2000). The district court was alerted to Raya-Romero’s objection to the sixteen-level enhancement, and it was clear from the PSR which section of the sentencing guidelines was applicable. See id. Moreover, Raya-Romero did not argue that U.S.S.G. § 4B1.2 was the applicable provision in his case; he merely cited cases involving that section for the proposition that his prior sex offense
conviction was not a crime of violence.

4 The district court used the 2003 edition of the U.S. Sentencing Guidelines Manual in sentencing Raya-Romero.

4 district court committed plain error by making such a finding, and

(3) that Raya-Romero’s sentence should be set aside and the case

remanded for resentencing. We disagree that plain error is the

correct standard of review, 3 but in light of the Government’s

concessions, we agree that Raya-Romero’s sentence should be vacated

and the case remanded for resentencing.

U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for a sixteen-level

enhancement of a defendant’s offense level “[i]f the defendant

previously was deported, or unlawfully remained in the United

States, after[] a conviction for a felony that is

. . . a crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003). 4 The commentary to

that section states,

“Crime of violence” means any of the following: murder, manslaug hter, kidnapping, aggravated assault, forcible5 “Oral copulation, victim unconscious” and “sexual

penetration, victim unconscious” can both be committed if the victim meets one of the following conditions: (1) Was unconscious or asleep. (2) Was not aware, knowing, perceiving, or cognizant

that the act occurred. (3) Was not aware, knowing, perceiving, or cognizant of
the essential characteristics of the act due to the perpetrator’s fraud in fact. (4) Was not aware, knowing, perceiving, or cognizant of
the essential characteristics of the act due to the perpetrator’s fraudulent representation that the oral copulation served a professional purpose when it served no professional purpose.

C AL

. P ENAL C ODE §§ 288a(f), 289(d) (West 2001).

6 We note for the district court’s benefit that even if the Government had not conceded this point, remand would be appropriate per Bonilla-Mungia , 422 F.3d 316. The record on appeal simply does not contain documents upon which this Court could rely to determine whether Raya-Romero’s conviction was a

5 sex offenses, statutory rape, sex ual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, bur glary 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(b)(1)(A)(ii), cmt. 1(B)(iii). Raya-Romero was

previously convicted of “oral copulation, victim unconscious” and

“sexual penetration, victim unconscious” under sections 288a(f) and

289(d) of the California Penal Code, each of which can be committed

in one of four ways. 5 He c ontends that neither offense has as an

element the use, attempted use, or threatened use of physical force

against the person of another, nor is either offense a forcible sex

offense. We do not decide those questions here. The Government

concedes that the record does not support the district court’s

crime of violence finding; 6 therefore, we vacate Raya-Romero’scrime of violence. Id . at 319-21; see also United States v.

Gonzalez-Chavez , ___ F.3d ___, No. 04-40173, 2005 WL 3196524, at *1-*2 (5th Cir. Nov. 30, 2005).

7 Raya-Romero argues in supplemental briefing that the

district court erred under Booker by applying the federal sentencing guidelines in a mandatory fashion. Because we vacate Raya-Romero’s sentence and remand for resentencing, we need not

address that issue here. Bonilla-Mungia , 422 F.3d at 321 n.6;

United States v. Alfaro , 408 F.3d 204, 210 n.2 (5th Cir. 2005). On remand, the district court will not be bound by the guidelines, but “must still carefully consider [them]” in sentencing the defendant; Booker , 543 U.S. at____, 125 S. Ct. at

764-65; Alfaro , 408 F.3d at 210 n.2; United States v. Mares , 402 F.3d 511, 518-19 (5th Cir. 2005). And if appealed, the resulting sentence will be reviewed for “unreasonableness” only. Booker

, 543 U.S. at ____, 125 S. Ct. at 765; Alfaro , 408 F.3d at 210 n.2;

Mares , 402 F.3d at 518.

6 sentence and remand for resentencing. 7

II.

For the foregoing reasons, Raya-Romero’s conviction is

AFFIRMED; his sentence is VACATED; and this matter is REMANDED for

resentencing in accordance with this opinion.