United States v. Gomez-Luna

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 14, 2001
• Docket: 00-10876
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10876 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO GOMEZ-LUNA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-20-1-P - - - - - - - - - - June 14, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Antonio Gomez-Luna (Gomez) appeals from his conviction and

sentence for illegal reentry into the United States following

deportation. See 8 U.S.C. § 1326. He argues that his underlying

state conviction for burglary of a habitation should not have

qualified as an aggravated felony, because the evidence did not

support a burglary conviction. Gomez further argues that because

the state felony conviction was invalid and violated due process,

the deportation order that served as an element of the offense of

illegal reentry also was invalid. For the first time on appeal,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10876 -2-

Gomez argues that the district court should have considered

recent amendments to the Legal Immigration Family Equity Act

(LIFE Act), which would have rendered inapplicable the sentence

enhancement for being an aggravated felon.

Gomez waived the right to appeal his sentence. Waivers of

the right to appeal are valid and enforceable. United States v.

Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Moreover, Gomez may

not attack collaterally a state court conviction that was used in

a federal sentencing procedure. See Custis v. United States, 511

U.S. 485, 493-97 (1994) (defendant has no right to collaterally

attack prior convictions used for enhancement purposes). Gomez

pleaded guilty to the underlying state burglary conviction. By

doing so, he admitted to the existence of all facts necessary to

establish guilt. See Cook v. Lynaugh, 821 F.2d 1072, 1075 (5th

Cir. 1987). Gomez fails to explain how a challenge to the

sufficiency of a state court conviction, for which he pleaded

guilty, satisfies the requirements for establishing a violation

of due process during a deportation proceeding. See United

States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999),

cert. denied, 120 S. Ct. 838 (2000).

Likewise, Gomez fails to demonstrate how the LIFE Act

amendments apply to his case. An alien convicted of a felony or

three or more misdemeanors committed in the United States is not

eligible under the LIFE Act’s amendments. See LIFE Act,

§ 1104(c), Pub. L. No. 106-553, 114 Stat. 2762 (2000). The

record reveals that Gomez has been convicted of one felony and

four misdemeanors committed in the United States. The issues No. 00-10876 -3-

raised by Gomez on appeal are frivolous. Accordingly, his appeal

is DISMISSED.