United States v. Mortera

168 F. App'x 657

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 23, 2006
• Docket: 05-40364
• Status: Unpublished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 February 23, 2006

Charles R. Fulbruge III Clerk No. 05-40364 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME SEQUEDA MORTERA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-822-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jaime Sequeda Mortera pleaded guilty to being illegally

present in the United States after deportation following an

aggravated felony conviction. He was sentenced to a 21-month

term of imprisonment and to a three-year period of supervised

release. Sequeda Mortera appeals his conviction and his

sentence.

Sequeda Mortera’s guideline offense level was increased by

eight levels because he was convicted in state court of felony

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40364 -2-

possession of a controlled substance prior to his deportation.

He contends that his prior conviction involved simple possession

and should not have been regarded as an aggravated felony for

purposes of U.S.S.G. § 2L1.2(b)(1)(C) (2004). This argument is

foreclosed. See United States v. Rivera, 265 F.3d 310, 312-13

(5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d 691,

693-94 (5th Cir. 1997).

Sequeda Mortera contends that the district court abused its

discretion in imposing as a condition of supervised release the

requirement that he cooperate in the collection of a DNA sample.

Because this issue is not ripe for review, this court does not

have jurisdiction and this portion of the appeal must be

dismissed. See United States v. Riascos-Cuenu, 428 F.3d 1100,

1101–02 (5th Cir. 2005), petition for cert. filed, (Jan. 9, 2006)

(No. 05-8662).

Sequeda Mortera 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 proved beyond a reasonable doubt in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Sequeda Mortera contends that

Almendarez-Torres has been “impliedly overruled” by subsequent

Supreme Court decisions, including Apprendi, “[t]his court has

repeatedly rejected arguments like the one made by [Sequeda No. 05-40364 -3-

Mortera] and has held that Almendarez-Torres remains binding

despite Apprendi.” United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Sequeda

Mortera concedes that the issue is foreclosed. He has raised the

issue to preserve it for further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.