United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2007
Charles R. Fulbruge III
Clerk
No. 06-40897
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANDRA ARREOLA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-36-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Sandra Arreola-Hernandez appeals her guilty-plea conviction
and sentence for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. Arreola-Hernandez argues that the
district court misapplied the Sentencing Guidelines by
characterizing her state felony conviction for possession of a
controlled substance as an “aggravated felony” under U.S.S.G.
§ 2L1.2(b)(1)(C).
Because Arreola-Hernandez has completed the confinement
portion of her sentence, any argument that the term of
*
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this opinion should not be published and is not precedent except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. 06-40897
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incarceration should be reduced is moot, and the only portion of
the sentence remaining for consideration is her term of
supervised release. However, Arreola-Hernandez has been removed
from the United States. Because Arreola-Hernandez is barred from
returning to the United States, and there is no indication that
she has waived her right to be present for resentencing, Arreola-
Hernandez’s challenge to the validity of her sentence is moot.
See United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th
Cir. 2007). The appeal is therefore DISMISSED as to Arreola-
Hernandez’s sentence.
For the first time on appeal, Arreola-Hernandez also
challenges the constitutionality of 8 U.S.C. § 1326(b) in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000). Arreola-
Hernandez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Arreola-Hernandez 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). Arreola-Hernandez properly concedes that
her argument is foreclosed in light of Almendarez-Torres and
circuit precedent, but she raises it here to preserve it for
further review. Accordingly, Arreola-Hernandez’s conviction is
No. 06-40897
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AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF DENIED AS
UNNECESSARY.