United States v. Lozano-Herrera

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III
Clerk
No. 04-40972
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

CARLOS LOZANO-HERRERA,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-216-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Carlos Lozano-Herrera (“Lozano”) pleaded guilty to one count

of being found in the United States without having obtained

permission to re-enter after deportation and was sentenced to

46 months of imprisonment. Lozano argues, for the first time on

appeal, that 8 U.S.C. § 1326(b) is unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Lozano’s argument

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

(1998). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).

*
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this opinion should not be published and is not precedent except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. 04-40972
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Also for the first time on appeal, Lozano, relying on the

possibility that Almendarez-Torres will be overruled, as well as

on Blakely v. Washington, 124 S. Ct. 2531 (2004), argues that the

federal sentencing guidelines are unconstitutional because they

permit the enhancement of a sentence based on prior convictions.

Lozano’s argument fails because Almendarez-Torres has not been

overruled and because the enhancement of a sentence based on

prior convictions does not violate the Sixth Amendment. See

United States v. Booker, 125 S. Ct. 738, 756 (2005).

The judgment of the district court is AFFIRMED.