United States v. Antonio Belman-Huijon

578 F. App'x 395

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 15, 2014
• Docket: 13-41278
• Status: Unpublished

Opinion

PER CURIAM: *

Antonio Belman-Huijon (“Belman”) pleaded guilty to having been unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326. The district court departed below the advisory guidelines range and sentenced him to 24 months of imprisonment. Belman appeals his sentence.

Belman renews his assertions that the district court’s application of the enhancement provision of U.S.S.G. § 2L1.2 violates the Constitution’s guarantee of equal protection, as well as the Eighth Amendment’s prohibition against cruel and unusual punishment. However, the enhancement of Belman’s sentence under § 2L1.2(b)(l)(A) did not violate his right to equal protection of the law. See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir.1993). Additionally, his below-guidelines sentence is not grossly disproportionate to his offense such that it violates the Eighth Amendment. See id.

In addition, Belman maintains that the two-year statutory maximum sentence of § 1326(a) applies to him and that his sentence is unconstitutional because the convictions used to enhance his sentence were not alleged in his indictment. As Belman acknowledges, his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.