United States v. Mendoza-Vera

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 17, 2005

Charles R. Fulbruge III Clerk No. 04-51078 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO MENDOZA-VERA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 2:04-CR-333-1 --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Antonio Mendoza-

Vera raises arguments that are foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), which held that a prior

conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and

not a separate criminal offense, and by United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517), and its progeny, which held that

unpreserved claims based on United States v. Booker, 125 S. Ct.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-51078 -2-

738 (2005), are reviewed for plain error. The Government’s

motion for summary affirmance is GRANTED, and the judgment of the

district court is AFFIRMED.