IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2008
No. 07-40094
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE JUAN SEGOVIA-PORTILLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-810-1
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jose Juan Segovia-Portillo appeals from his guilty-plea conviction of being
found in the United States after previous deportation, in violation of 8 U.S.C.
§ 1326(a) & (b), and the resulting sentence of 46 months of imprisonment.
Segovia-Portillo argues that the district court erred by relying upon, inter alia,
a New York certificate of disposition to determine that his New York conviction
of first degree manslaughter was a crime of violence (COV) under U.S.S.G.
*
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should not be published and is not precedent except under the limited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. 07-40094
§ 2L1.2(b)(1)(A)(ii) (2006). He also argues that the felony and aggravated felony
provisions of § 1326(b) are unconstitutional.
The district court in Segovia-Portillo’s case admitted into evidence a
certificate of disposition that indicates that Segovia-Portillo entered a plea of
guilty to violating the first subsection of the New York first degree manslaughter
statute, N.Y. Penal Law § 125.20 (McKinney 1997). Segovia-Portillo concedes
that a conviction under the first subsection of § 125.20 warrants a COV
enhancement. New York certificates of disposition are presumptive evidence of
the facts stated therein and are admissible to determine the nature of a prior
conviction. United States v. Neri-Hernandes, 504 F.3d 587, 592 (5th Cir. 2007),
cert. denied, 128 S. Ct. 1106 (2008). Certificates of disposition are not conclusive
and may be rebutted. Id. However, as Segovia-Portillo produced no evidence
calling into question the reliability of the certificate of disposition in his case, the
district court did not err in using the certificate of disposition to establish that
Segovia-Portillo was convicted of the first subsection of the New York first
degree manslaughter statute, which is a COV. See id.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Segovia-Portillo
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. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
For the foregoing reasons, the district court’s judgment is AFFIRMED.
2