United States v. Pineda-Garduno

153 F. App'x 300

Opinion

PER CURIAM: *

Jose Pineda-Garduno (“Pineda”) 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 an aggravated felony. The district court sentenced Pineda to 57 months of imprisonment and three years of supervised release.

Pineda’s sole issue on appeal is a challenge to the validity of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and the use of his prior conviction to increase his sentence. Pineda asserts 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. Pineda 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 Pineda concedes, his arguments are foreclosed. See United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 253, — L.Ed.2d - (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, 120 S.Ct. 2348,147 L.Ed.2d 435 (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.

Footnotes

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.