United States v. Delgadillo-Bernal

153 F. App'x 300

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 9, 2005
• Docket: 05-40111
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 9, 2005

Charles R. Fulbruge III Clerk No. 05-40111 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE JUAN DELGADILLO-BERNAL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1632-ALL --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Juan Delgadillo-Bernal (“Delgadillo”) appeals the

sentence imposed following entry of his guilty plea to a charge

of being found illegally in the United States after he had been

removed subsequent to his conviction for a felony. The district

court sentenced Delgadillo to 18 months of imprisonment and three

years of supervised release.

Delgadillo’s sole issue on appeal is a challenge to the

validity of Almendarez-Torres v. United States, 523 U.S. 224

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 05-40111 -2-

(1998), and the use of his prior conviction to increase his

sentence. Delgadillo asserts for the first time on appeal that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) are unconstitutional because they are treated as

sentencing factors rather than as elements of the offense.

Delgadillo concedes that his argument is foreclosed by circuit

precedent and admits that he raises the argument merely to

preserve it for Supreme Court review.

As Delgadillo concedes, his arguments are foreclosed. See

United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th

Cir.), cert. denied, 126 S. Ct. 253 (2005); United States v.

Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003). The Supreme

Court in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), did

not overrule Almendarez-Torres, and we must follow Almendarez-

Torres “unless and until the Supreme Court itself determines to

overrule it.” Mancia-Perez, 331 F.3d at 470 (internal quotation

marks and citation omitted).

AFFIRMED.