United States v. Noriega-Puente

167 F. App'x 387

Opinion

PER CURIAM: *

IT IS ORDERED that Appellee’s unopposed motion to vacate the sentence is GRANTED.

IT IS FURTHER ORDERED that Appellee’s unopposed motion to remand this case to District Court for re-sentencing consistent with our decision in United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 819, 163 L.Ed.2d 644 (2005), is GRANTED.

For purposes of that re-sentencing, Noriega’s constitutional challenge to the sentencing provisions of 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Noriega contends Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Almendarez-Torres remains binding precedent. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Noriega concedes Almendarez-Torres and circuit precedent foreclose this challenge; he raises it to preserve it for possible further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RE-SENTENCING.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.