United States v. Pineda-Garduno

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005

Charles R. Fulbruge III
Clerk
No. 05-20267
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE PINEDA-GARDUNO, also known as Jose Garduno Pineda,
also known as Jose G. Pineda,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-369-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.

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 (1998), and

*
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this opinion should not be published and is not precedent except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. 05-20267
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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, 126 S. Ct. 253 (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 (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.