IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2008
No. 07-40712
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE ISABEL RENTERIA-VALENZUELA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-99-1
Before HIGGINBOTHAM, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
Jose Isabel Renteria-Valenzuela (Renteria) appeals the 77-month sentence
imposed following his guilty plea conviction for illegal reentry following
deportation after having been convicted of an aggravated felony. Renteria
argues that the district court erred in applying the 16-level drug trafficking
enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(i) to his offense level calculation, and
*
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should not be published and is not precedent except under the limited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. 07-40712
he also raises an admittedly foreclosed challenge to the constitutionality of
8 U.S.C. § 1326(b) under Apprendi v. New Jersey, 530 U.S. 466 (2000).
Renteria’s plea agreement contained an appeal waiver, which the
Government seeks to enforce. Although the district court at sentencing
purported to give Renteria the right to appeal its application of the drug
trafficking enhancement, this “does not affect our determination” as to whether
Renteria’s waiver of appeal rights “was voluntary, knowing, and permissible.”
United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992); see also United
States v. Gonzalez, 259 F.3d 355, 358 (5th Cir.2001). Our review is de novo. See
Melancon, 972 F.2d at 567-68.
Renteria acknowledges that, by its terms, the appeal waiver included in
his plea agreement precludes his appeal of the 16-level enhancement issue, but
he contends that the waiver should not be enforced because he did not knowingly
and voluntarily agree to it. To the contrary, the record reveals that Renteria’s
appeal waiver was knowing and voluntary; the district court fully advised
Renteria of the consequences of both his plea and the appeal waiver. See United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005); United States v. Santa
Lucia, 991 F.2d 179, 180 (5th Cir. 1993). The district court’s statements during
sentencing regarding Renteria’s right to appeal did not negate an otherwise
knowing and voluntary waiver. See Gonzalez, 259 F.3d at 358. We therefore
enforce the waiver and do not reach the merits of Renteria’s challenge to the 16-
level drug trafficking enhancement.
In light of Apprendi, Renteria 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 (1995). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.
2007), cert. denied, 128 S. Ct. 872 (2008).
AFFIRMED.
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