United States v. Alvarenga-Hernandez

274 F. App'x 347

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 15, 2008
• Docket: 07-40054
• Status: Unpublished

Opinion

PER CURIAM: *

Welman Alvarenga-Hernandez (Alvar-enga) appeals his sentence for illegal reen try following deportation. Specifically, Al-varenga challenges the enhancement of his sentence based upon the district court’s determination that his prior conviction for second degree assault is a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(l)(C). Because he has been released from prison and deported to Mexico, his appeal of his sentence is moot. See United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir.2007).

In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Alvarenga challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied, -U.S. ———, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008).

APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.