United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2005
Charles R. Fulbruge III
Clerk
No. 05-10251
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN ARMIJO-AREVALO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-310-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Martin Armijo-Arevalo pleaded guilty to being found in the
United States following deportation in violation of 8 U.S.C.
§ 1326(a), (b)(1) and (b)(2). Because Armijo-Arevalo had been
deported subsequent to an aggravated felony conviction, his
offense level was enhanced by eight points under the Sentencing
Guidelines.
Armijo-Arevalo’s argument that the treatment of prior
convictions as sentencing factors rather than offense elements
under 18 U.S.C. § 1326(b)(1), (b)(2) is unconstitutional is
*
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this opinion should not be published and is not precedent except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. 05-10251
-2-
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998).
Armijo-Arevalo also argues that his sentence should be
vacated pursuant to United States v. Booker, 125 S. Ct. 738
(2005), because it was imposed under a mandatory Sentencing
Guidelines regime. Armijo-Arevalo was sentenced on February 4,
2005, and Booker was decided on January 12, 2005. The district
court specifically noted that the guidelines were advisory.
The record shows that the district court did not err by treating
the guidelines as mandatory. Armijo-Arevalo asserts no other
error in his sentence, other than the foreclosed issue discussed
above.
Armijo-Arevalo also makes ex-post-facto arguments concerning
his resentencing on remand. As remand and resentencing are
unnecessary, these arguments are moot.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.