United States v. Lucero-Ramirez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-51691
c/w No. 07-50060
Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE ARMANDO LUCERO-RAMIREZ

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:06-CR-199-ALL
USDC No. 1:06-CR-219-ALL

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*
Jose Armando Lucero-Ramirez (Lucero) appeals his guilty-plea conviction
of, and sentence for, violating 8 U.S.C. § 1326 by being found in the United
States without permission after deportation. He argues, in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), that the 57-month term of imprisonment
imposed in his case exceeds the statutory maximum sentence allowed for the

*
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should not be published and is not precedent except under the limited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. 06-51691
c/w No. 07-50060

§ 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 that must be found by a
jury.
Lucero’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.
2005); Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United States v.
Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007). Lucero
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.
Lucero’s appeal of his revocation of supervised release was consolidated
with the instant appeal. He has not, however, raised any argument with respect
to these proceedings. Any such claim is thus deemed abandoned. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The judgments of the district court are AFFIRMED. The Government’s
motion for summary affirmance is GRANTED. The Government’s motion for an
extension of time to file a brief is DENIED.

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