IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 08-50172
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ENRIQUE SERNA-TORRES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-2572-ALL
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Enrique Serna-Torres appeals his guilty plea conviction and sentence for
illegal reentry following deportation in violation of 8 U.S.C. § 1326. He contends
that the district court erred when it enhanced his sentence pursuant to
§ 1326(b)(1) and U.S.S.G. § 2L1.2(b)(1)(D) because the Government failed to
establish beyond a reasonable doubt that he had a prior felony conviction. The
Government has filed a motion for summary affirmance or, alternatively, for an
extension of time in which to file a brief on the merits.
*
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should not be published and is not precedent except under the limited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. 08-50172
To the extent Serna-Torres argues that his prior felony conviction must
have been pleaded in the indictment and proved beyond a reasonable doubt, his
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007),
cert. denied, 128 S. Ct. 872 (2008).
To the extent Serna-Torres argues that the Government failed to establish
a sufficient evidentiary basis for the sentencing enhancement, he has failed to
show plain error. See United States v. Olano, 507 U.S. 725, 732 (1993). The
presentence report (PSR) provided that Serna-Torres was removed to Mexico on
July 20, 2004, subsequent to his conviction on September 21, 2001, for the felony
offense of illegal reentry. The PSR also provided that the § 2L1.2(b)(1)(D)
enhancement was based on this prior felony conviction. At sentencing, Serna-
Torres agreed with the guideline calculation set forth in the PSR, and the
district court adopted the PSR without change. Therefore, the Government
proved by a preponderance of the evidence that Serna-Torres’s prior removal was
subsequent to his felony conviction for illegal reentry, and the district court did
not err when it enhanced his sentence pursuant to § 1326(b)(1) and
§ 2L1.2(b)(1)(D). See United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
Accordingly, the district court’s judgment is AFFIRMED, the
Government’s motion for summary affirmance is GRANTED, and the
Government’s motion for an extension of time is DENIED.
2