United States v. Espinosa-Hernandez

          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                                 October 15, 2007
                                No. 07-20183
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSE LUIS ESPINOSA-HERNANDEZ, also known as Jose Luis Espinosa

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:06-CR-328-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Jose Luis Espinosa-Hernandez appeals the sentence imposed following his
conviction of one charge of illegal reentry into the United States. He argues that
the district court erred by imposing a sentence that exceeded the pertinent
guidelines recommendation. Our review of the record, including the exhaustive
reasons given by the district court in support of its judgment, shows no




      *
      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should not be published and is not precedent except under the limited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. 07-20183

reversible error in connection with Espinosa-Hernandez’s sentence. See United
States v. Smith, 440 F.3d 704, 706-08 (5th Cir. 2006).
      Espinosa-Hernandez also 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. Espinosa-
Hernandez’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 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. 2005). Espinosa-Hernandez 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. The judgment of the district
court is AFFIRMED.




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United States v. Espinosa-Hernandez

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