F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 28, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-1260
v. (D.C. No. 04-CR-453-RB)
JOSE TOVAR-HERRERA, (D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant was convicted of illegal aggravated re-entry, in violation of 8
U.S.C. § 1326(b)(2). Pursuant to the penalties provided for in 8 U.S.C. §
1326(b)(2), the district court sentenced Defendant to forty-one months’
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
imprisonment.
On appeal, Defendant challenges his sentence as being imposed in violation
of his constitutional rights, as recently articulated by the Supreme Court in United
States v. Booker, __U.S.__, 125 S. Ct. 738 (2005). Specifically, Defendant claims
that the district court committed constitutional error when it concluded by a
preponderance of the evidence that Defendant had been convicted of previous
crimes which would enhance his sentence under 8 U.S.C. § 1326(b)(2). Issues
concerning the legality of Defendant’s sentence are reviewed de novo. United
States v. Gonzales-Lerma, 14 F.3d 1479, 1484 (10th Cir. 1994).
We agree with Defendant’s admission in his brief that “[t]wo earlier
decisions . . . bar relief in this court. The first is this court’s ruling in United
States v. Glover, 413 F.3d 1206 (10th Cir. 2005). The second is the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998).” 1
Thus, we find Defendant’s argument regarding his enhanced sentence unavailing
and conclude that his sentence was not unlawfully enhanced.
We AFFIRM the sentence imposed.
Entered for the Court
We note that Defendant raises this issue to preserve his challenge of
1
Glover and Almendarez-Torres to either an en banc panel of this court or the
United States Supreme Court. We are, however, bound by both precedents.
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Monroe G. McKay
Circuit Judge
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