United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 7, 2006
Charles R. Fulbruge III
Clerk
No. 05-51084
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MORALES-JIMENEZ, also known as Rigoberto Morales,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-517-ALL
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Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Carlos Morales-Jimenez (Morales) appeals his conviction and
57-month sentence for illegal reentry following deportation.
Morales argues that the district court erred in allowing the
Government to supplement the record on remand with certified copies
of documents proving that his prior conviction for burglary of a
habitation was a crime of violence that warranted the 16-level
increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii). He also argues that
the “felony” and “aggravated felony” provisions of 8 U.S.C.
*
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this opinion should not be published and is not precedent except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.
§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000).
At Morales’s sentencing, defense counsel challenged the lack
of evidence presented by the Government to establish that his
conviction for a burglary of a habitation constituted a
§ 2L1.2(b)(1)(A)(ii) crime of violence. At the re-sentencing,
defense counsel challenged the Government’s failure to admit into
evidence, at the original sentencing hearing, the documents
necessary to establish the fact of Morales’s prior conviction.
Morales does not challenge the accuracy of the documents
provided to defense counsel at the original sentencing, nor does he
argue that his burglary conviction does not warrant the
§ 2L1.2(b)(1)(A)(ii) increase. The Government’s failure to
formally introduce certified copies of the indictment and
commitment order was not reversible error. See United States v.
Ramirez, 367 F.3d 274, 276-77 (5th Cir. 2004). The district court
did not err by allowing the Government to respond to defense
counsel’s objection at the re-sentencing by admitting evidence in
support of its position. See FED. R. CRIM. P. 32(i)(2).
Morales’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Morales contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly rejected
such arguments on the basis that Almendarez-Torres remains binding.
2
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Morales properly concedes
that his argument is foreclosed in light of Almendarez-Torres and
circuit precedent, but he raises it here to preserve it for further
review. Because Morales has shown no error in the judgment of the
district court, that judgment is AFFIRMED.
3