United States v. Miguel Cabrera-Rangel

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 9, 2018
• Docket: 17-41123
• Status: Unpublished

Opinion

Case: 17-41123 Document: 00514546458 Page: 1 Date Filed: 07/09/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED No. 17-41123 July 9, 2018 Summary Calendar Lyle W. Cayce Clerk

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

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 for assault on a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 17-41123 Document: 00514546458 Page: 2 Date Filed: 07/09/2018

No. 17-41123

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). He notes, however, that a reevaluation of Watts is necessary because it did not address whether consideration of acquitted 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 that 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, see 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

2 Case: 17-41123 Document: 00514546458 Page: 3 Date Filed: 07/09/2018

the Sixth Amendment and should be vacated.

As Cabrera-Rangel concedes, his claim is foreclosed. Regardless 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 facts, our precedent forecloses such contentions. United States v. Hernandez, 633 F.3d 370, 374 (5th Cir. 2011).

AFFIRMED.