USA v. Quevado-Hernandez

Filing 920060601

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
June 1, 2006 Charles R. Fulbruge III Clerk

No. 05-51103 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO QUEVADO-HERNANDEZ, Defendant-Appellant. c/w No. 05-51106 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO QUEVADO-HERNANDEZ, also known as Francisco Quevedo-Hernandez, also known as Francisco Hernandez, also known as Jorge Alberto Hernandez, Defendant-Appellant. -------------------Appeals from the United States District Court for the Western District of Texas USDC No. 1:05-CR-74 USDC No. 1:96-CR-153-ALL -------------------Before REAVLEY, DAVIS and PRADO, Circuit Judges. PER CURIAM:*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-51103 c/w No. 05-51106 -2Francisco Quevado-Hernandez appeals his conviction and sentence for reentry of a deported alien, in violation of 8 U.S.C. § 1326. He also appeals an order revoking a term of

supervised release that was imposed in connection with a prior conviction and imposing a term of imprisonment. Quevado argues

that his sentence of 120 months of imprisonment for his illegal reentry offense, which included an upward departure, was unreasonable as measured by 18 U.S.C. § 3553(a). He also argues

that the sentencing provisions of 8 U.S.C. § 1326(b) are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court considered Quevado's history, which is a valid consideration under 18 U.S.C. § 3553(a). See 18 U.S.C.

§ 3553(a)(1). Quevado's use of multiple names and birth dates, coupled with his criminal history, indicated a general disrespect for the law. His criminal history indicated that a lesser These are also valid See 18 U.S.C.

sentence would not have a deterrent effect. considerations under 18 U.S.C. § 3553(a). § 3553(a)(2)(A) and (B).

Quevado's sentence is appropriate under

the Guidelines and is not unreasonable as measured by 18 U.S.C. § 3553(a). Quevado's arguments thus do not provide a basis for

reversal. Quevado's constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Quevado contends that

Almendarez-Torres was incorrectly decided and that a majority of

No. 05-51103 c/w No. 05-51106 -3the 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). Quevado 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. Accordingly, the judgment of conviction is AFFIRMED. As

Quevado offers no specific argument challenging the sentence imposed upon revocation, the order revoking Quevado's supervised release and imposing a term of imprisonment is also AFFIRMED.