USA v. Prado-Ortiz
Filing
920061024
Opinion
United States Court of Appeals Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 24, 2006 Charles R. Fulbruge III Clerk No. 05-41516 Conference Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALVARO PRADO-ORTIZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-349-ALL -------------------Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Alvaro Prado-Ortiz (Prado) appeals the sentence he received for illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326. Prado argues that the district
court misapplied the Sentencing Guidelines by characterizing each of his prior state felony convictions for possession of controlled substances as "aggravated felonies" for purposes of U.S.S.G. § 2L1.2(b)(1)(C). light of circuit precedent. Prado's argument is unavailing in See United States v. Hinojosa-Lopez, Prado argues that this
130 F.3d 691, 693-94 (5th Cir. 1997).
*
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41516 -2circuit's precedent is inconsistent with Jerome v. United States, 318 U.S. 101 (1943). Having preceded Hinojosa-Lopez, Jerome is
not "an intervening Supreme Court case explicitly or implicitly overruling that prior precedent." 181 F.3d 620, 624 (5th Cir. 1999). Prado also challenges the constitutionality of § 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Prado's See United States v. Short,
constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Prado argues
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.), cert. denied, 126 S. Ct. 298 (2005). Prado 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. AFFIRMED.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?