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this opinion should not be published and is not precedent except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
-2-
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.