United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
Clerk
No. 05-41402
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL MORENO-MERCADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-304-ALL
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Manuel Moreno-Mercado (Moreno) appeals the sentence imposed
following his guilty-plea conviction of being knowingly and
unlawfully present in the United States after previously having
been denied admission, excluded, deported, or removed subsequent
to an aggravated felony conviction, in violation of 8 U.S.C.
§ 1326(a) and (b). Moreno argues that the district court erred
in enhancing his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
based on his prior Texas robbery conviction under TEX. PENAL CODE
*
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this opinion should not be published and is not precedent except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. 05-41402
-2-
ANN. § 29.02 (Vernon 1999). He also argues that the enhancement
provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Robbery is expressly listed as a crime of violence in the
commentary to § 2L1.2. See § 2L1.2, cmt. n.1(b)(iii). This
court recently held in United States v. Santiesteban-Hernandez,
469 F.3d 376, 378-82 (5th Cir. 2006), that the Texas robbery
statute, § 29.02, qualifies as the enumerated offense “robbery”
for § 2L1.2 purposes. Moreno’s arguments are almost identical to
the arguments made in Santiesteban-Hernandez, 469 F.3d at 378-82,
and therefore do not provide a basis for relief.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
subsequent Supreme Court precedent, Moreno challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury. Moreno’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although he 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. See United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Moreno properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit
No. 05-41402
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precedent, but he raises it here to preserve it for further
review.
The district court’s judgment is AFFIRMED.