United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-40589
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER HERNANDEZ-PENALOSA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(2:05-CR-663-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Javier Hernandez-Penalosa appeals his
guilty-plea conviction of, and sentence for, violating 8 U.S.C. §
1326 by being found in the United States without permission
following deportation.
Hernandez-Penalosa challenges his sentence, arguing that
because the district court did not state that the Sentencing
Guidelines are advisory, did not consider his mitigating evidence,
and imposed a sentence identical to that which would have been
imposed under the mandatory Guidelines scheme, the sentencing court
*
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this opinion should not be published and is not precedent except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.
effectively treated the Guidelines as mandatory. The government
seeks to enforce Hernandez-Penalosa’s sentencing waiver of appeal.
The record shows that the waiver was knowing and voluntary and,
based on the plain language of the agreement, applies to the
circumstances at hand. See United States v. Bond, 414 F.3d 542,
544 (5th Cir. 2005). Accordingly, we do not address Hernandez-
Penalosa’s sentencing challenge. See id. at 546.
Hernandez-Penalosa argues that, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), his 57-month term of imprisonment
exceeds the statutory maximum sentence allowed for the § 1326(a)
offense charged in his indictment. He challenges the
constitutionality of § 1326(b)'s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
elements of the offense, which must be found by a jury. Hernandez-
Penalosa’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). Hernandez-Penalosa properly
concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, and that he raises it here
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solely to preserve it for further review. We GRANT the
government’s unopposed motion for summary affirmance of this issue.
The government moved for dismissal of the appeal as barred by
Hernandez-Penalosa’s waiver of appeal. As the challenge to the
constitutionality of § 1326(b) is arguably not waived, the motion
to dismiss is DENIED. As it is clear, however, that Hernandez-
Penalosa’s appeal of his sentence is barred by his waiver and that
his sentence should be affirmed, the government’s motion for an
extension of time to file a brief is DENIED as unnecessary. For
the foregoing reasons Hernandez-Penalosa’s sentence is
AFFIRMED.
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