USA v. Armando Simental-Carrillo

Filing

UNPUBLISHED OPINION FILED. [10-50016 Affirmed ] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010 for Appellant Armando Simental-Carrillo; granting motion for summary affirmance filed by Appellee USA [6561732-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6561732-3] [10-50016]

USA v. Armando Simental-Carrillo Case: 10-50016

Document: 00511274933 Page: 1 Date Filed: 10/26/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50016 C o n fe r e n c e Calendar October 26, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A R M A N D O SIMENTAL-CARRILLO, also known as Manuel Garcia, also known a s Manuel Avilez, also known as Armando Braulio Simental, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CR-386-1

B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A r m a n d o Simental-Carrillo (Simental) appeals the sentence imposed fo ll o w i n g his conviction of unlawful reentry pursuant to 8 U.S.C. § 1326. Simental contends that the district court erred by imposing a 16-level crime of v io le n c e enhancement based on his prior Texas conviction of indecency by e x p o s u r e with a child under 17 years of age, a violation of Texas Penal Code § 21.11(a)(2). He argues that the Texas conviction is not within the enumerated

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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Case: 10-50016 Document: 00511274933 Page: 2 Date Filed: 10/26/2010 No. 10-50016 o ffe n s e of sexual abuse of a minor because an offense under § 21.11(a) can be c o m m it t e d against a victim who is 16 years of age. The Government moves for s u m m a r y affirmance or, in the alternative, for an extension of time to file a brief. As Simental concedes, his argument is foreclosed by circuit precedent. See U n ite d States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008); United States v. Z a v a la -S u s ta ita , 214 F.3d 601, 604 (5th Cir. 2000). Accordingly, the judgment o f the district court is AFFIRMED and the Government's motion for summary a ffir m a n c e is GRANTED. The alternative request for an extension of time to file a brief is DENIED.

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