United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 6, 2006
Charles R. Fulbruge III
Clerk
No. 06-50149
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO LERMA-GALINDO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
(2:04-CR-59)
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Alberto Lerma-Galindo (Lerma) appeals his
guilty-plea conviction and 48-month sentence for illegally
reentering the United States after having been deported previously.
Lerma contends that the district court violated the law of the case
doctrine on remand by again applying the crime of violence sentence
enhancement under U.S.S.G. § 2L1.2(b)(1)(A). He further contends
that even if the district court’s ruling was not error, his
sentence is unreasonable.
*
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this opinion should not be published and is not precedent except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.
The district court properly considered two different
guidelines ranges, with and without the contested sentence
enhancement, and determined that the particular facts of Lerma’s
case warranted a 48 month sentence. See United States v. Smith,
440 F.3d 704, 706-07 (5th Cir. 2006). The alternate non-guidelines
sentence imposed by the district court is reasonable considering
the “case-specific factors” cited by the district court. See
United States v. Tzep-Mejia, 461 F.3d 522, 528 (5th Cir. 2006).
Thus, it is unnecessary to address Lerma’s argument regarding the
imposition of the crime-of-violence sentence enhancement. See id.
at 525.
Lerma also challenges the constitutionality of 8 U.S.C.
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Lerma contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466
(2000), we have repeatedly rejected such arguments on the basis
that Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005). Lerma properly concedes that his argument is
foreclosed in light of Almendarez-Torres and circuit precedent, and
that he raises it here only to preserve it for further review.
Accordingly, the judgment of the district court is
AFFIRMED.
2
3