* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T his case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### May 10, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-2244

v. District of New Mexico RICARDO VACA-PEREZ,

Defendant-Appellant. (D.C. No. CR-05-00392-JP)

ORDER AND JUDGMENT *

Before MURPHY , SEYMOUR , and McCONNELL , Circuit Judges.

Ricardo Vaca-Perez pleaded guilty to illegally reen tering the United States after deportation for an aggravated felony in violation of 8 U.S.C. §§ 1326(b)(2). The district court concluded that his previous felo ny, a state court conviction for-2-

committing lewd and lascivious acts with a child, w as a crime of violence, and the court enhanced Mr. Vaca-Perez’s offense level with a net upward adjustment of thirteen levels and sentenced him to a prison term of forty-one months. On appeal, Mr. Vaca-Perez argues that (1) the districtcourt erred in determining that the prior felony was a crime of violence; (2) the c ourt erred under United States v. Booker , 543 U.S. 220 (2005), by increasing his sentence b ased on the fact, not proved to a jury, that the prior conviction was a c rime of violence; (3) the court abused its discretion by imposing an unreasonable s entence; and (4) the Supreme Court should reverse Almendarez-Torres v. United States , 523 U.S. 224 (1998). We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we
AFFIRM. I. Background A border patrol agent encountered and arrested Mr. Vaca-Perez in Luna County, New Mexico, on December 29, 2004. Mr. Vaca -Perez is a Mexican citizen who was convicted in California in 1998 forcommitting lewd and lascivious acts with a child, was deported, and sub sequently reentered the United States illegally. Mr. Vaca-Perez pleaded guilty to the reentry charge, and a probation officer prepared a presentence report rec ommending that Mr. VacaPerez—whose base offense level was eight—receive a sixteen-level upward adjustment because the prior felony conviction was a crime of violence, and a-3-

three-level downward adjustment for acceptance of r esponsibility, resulting in an adjusted offense level of twenty one. At sentencing, the district court ruled, over Mr. V aca-Perez’s objection, that the prior offense was a crime of violence. Th e court sentenced Mr. VacaPerez to forty-one months’ imprisonment, a term at the bottom of the Sentencing Guidelines range.
II. Discussion 1. The district court properly held that the prior felony was a crime of violence Mr. Vaca-Perez argues that his prior criminal convi ction for committing lewd and lascivious acts with a child was not a cri me of violence because the offense did not include, as a necessary element, th e use, attempted use, or threatened use of force. Mr. Vaca-Perez interprets Shepard v. United States , 544 U.S. 13, 125 S. Ct. 1254, 1262 (2005), as standing for the proposition that unless force was unambiguously an element of the prior off ense, a sentencing court may only consider the charging documents in deciding wh ether the prior felony offense was a crime of violence. Therefore, he arg ues, the absence of a force element in California Penal Code § 288(a), under wh ich he was previously convicted, should have prevented the court’s findin g of a crime of violence and the concomitant sentencing enhancement.-4-

Mr. Vaca-Perez’s argument is precluded by a Novembe r 2003 amendment to the Sentencing Guidelines, which included sexual abuse of a minor in the list of offenses that are always crimes of violence for sentencing. U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (2005). In explaining the 2003 amendment, the Sentencing Commission noted that “[t ]he previous definition often led to confusion over whether the specified o ffenses listed in that definition, particularly sexual abuse of a minor and residentia l burglary, also had to include as an element of the offense ‘the use, attempted us e, or threatened use of physical force against the person of another.’” U.S. Sentenc ing Guidelines Manual app. C (vol. II), amend. 658, at 401-02 (Supp.2003). Afte r the amendment, “the enumerated offenses are always classified as ‘crime s of violence,’ regardless of whether the prior offense expressly has as an eleme nt of the use, attempted use, or threatened use of physical force against the personof another.” Id. at 402. We held in Munguia-Sanchez , 365 F.3d 877 (10th Cir. 2004), that the enumerated offenses in § 2L1.2 do not require proof of the use or threatened use of force for sentencing adjustment purposes. Id. at 880-81. Accordingly, the district court correctly found that Mr. Vaca-Perez’ s prior offense was a crime of violence. Accord United States v. Medina-Maella , 351 F.3d 944, 946-47 (9th Cir. 2003) (concluding that a conviction under § 288(a) of the California Penal Code was a prior conviction for a crime of violence unde r § 2L1.2).-5-

2. The court did not commit constitutional Bookererror Mr. Vaca-Perez argues that a district court may notfind additional facts regarding a prior conviction that will significantl y increase a sentence unless those facts are alleged in the indictment, admitted by the defendant, or proved to the jury beyond a reasonable doubt. He concedes th at the district court could properly enhance his sentence because his prior fel ony offense was an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(c), but he argu es that the sixteen-level enhancement for a crime of violence required additi onal fact-finding prohibited by United States v. Booker , 543 U.S. 220 (2005). While Booker does require that certain facts be found by a jury or admitted by a defendant, that requirement does not apply to the fact of a defendant’s prior conviction nor to the district court’s characterization of that prior offense as a crime of violence. United States v. Austin , 426 F.3d 1266, 1270 (10th Cir. 2005). The characterization of prior convictions as crimes of violence is “a question of law and not fact and therefore does not implicate t he Sixth Amendment for the purpose of requiring the characterization of the of fense to be charged in the indictment and proven to a jury.” Id. As discussed above, Mr. Vaca-Perez’s previous conviction was, on its face, a crime of vi olence. Consequently, the district court did not need to engage in any fact-f inding to characterize it as such. Therefore, Mr. Vaca-Perez’s rights were not violate d.-6-

3. The court did not abuse its discretion by imposing an unreasonable sentence Mr. Vaca-Perez argues that the Sentencing Guideline s allow sentences for illegal reentry that are unreasonably severe. In s upport of his argument, he cites United States v. Trujillo-Terrazas , 405 F.3d 814, 821 (10th Cir. 2005), as standing for the proposition that a sixteen-level i ncrease for a crime of violence calls into question the fairness, integrity, and pu blic reputation of judicial proceedings. And Mr. Vaca-Perez claims that the Gu idelines’ sixteen-level enhancement for a crime of violence classifies murd erers and rapists in the same category as immigrants who illegally reenter the Un ited States regardless of the violence actually employed in the prior felony offe nse, and that the Guidelines are especially unreasonable when compared to the senten ces imposed for similarly situated offenders who commit far more violent offe nses. When sentencing Mr. Vaca-Perez, the district court knew that Bookermade the Guidelines advisory and gave the court discreti on to impose a sentence outside the Guidelines range. In considering the factors s et forth in 18 U.S.C. § 3553, however, the court decided that a sentence within t he range was reasonable. While a Guidelines sentence is not per se reasonabl e, we have held that “a sentence that is properly calculated under the Guid elines is entitled to a rebuttable presumption of reasonableness.” United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006) (internal quotation marks omitted) . We have considered-7-

Appellants’ arguments and find no basis for conclud ing either that the district court erred in calculating Mr. Vaca-Perez’s sentenc e or that the sentence imposed was unreasonable.
4. Almendarez-Torres v. United States is binding law Mr. Vaca-Perez acknowledges that the Supreme Court decision in Almendarez-Torres v. United States , 523 U.S. 224 (1998), is binding authority on this Court. He challenges it merely to preserve th e issue for possible review by the Supreme Court. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED

. Entered for the Court, Michael W. McConnell Circuit Judge