### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 41123 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

− Appellee ,

v ersus
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 fo r assault on a

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances se t forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 9, 2018 Lyle W. Cayce Clerk Case: 17-41123 Document: 00514546458 Page: 1 Date Filed: 07/09/2018N o. 17

- 41123

2 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). H e not es , however, that a reevaluation of Watts is necessary because it did not address whether consideration of acquit ted 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 th at 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, s ee 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 Case: 17-41123 Document: 00514546458 Page: 2 Date Filed: 07/09/2018N o. 17

- 41123

3 the Sixth Amendment and should be va cated

. As Cabrera

- Rangel concedes, his claim is foreclosed. R egardless 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 fac ts, our precedent forecloses such contentions

. United States v. Hernandez , 633 F.3d 370, 374 (5th Cir. 2011).
AFFIRMED. Case: 17-41123 Document: 00514546458 Page: 3 Date Filed: 07/09/2018