United States v. Simental-Carrillo

399 F. App'x 24

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 26, 2010
• Docket: No. 10-50016
• Status: Published

Opinion

PER CURIAM:

*

Armando Simental-Carrillo (Simental) appeals the sentence imposed following 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 violence enhancement based on his prior Texas conviction of indecency by exposure 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 offense of sexual abuse of a minor because an offense under § 21.11(a) can be committed against a victim who is 16 years of age. The Government moves for summary affir-mance or, in the alternative, for an extension of time to file a brief.

As Simental concedes, his argument is foreclosed by circuit precedent. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir.2008); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000). Accordingly, the judgment of the district court is AFFIRMED and the Government’s motion for summary affirmance is GRANTED. The alternative request for an extension of time to file a brief is DENIED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.