USA v. Barrera

Filing 920070619

Opinion

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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 19, 2007 Charles R. Fulbruge III Clerk No. 06-40237 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OSMIN ALEXANDER BARRERA, also known as Armando Guevara, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-1831 -------------------Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges. PER CURIAM:* Osmin Alexander Barrera pleaded guilty to being illegally present in the United States following deportation and was sentenced to a 46-month term of imprisonment. Barrera argues that the district court erred by enhancing his offense level based on its finding that Barrera's prior Florida conviction for aggravated battery was a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii). Barrera also argues that the felony and aggravated felony provisions of 8 U.S.C. 1326(b) are 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40237 -2unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent Supreme Court decisions. The district court did not err by increasing Barrera's offense level pursuant to 2L1.2(b)(1)(A)(ii) based on the determination that a prior Florida aggravated battery conviction was a crime of violence. See United States v. Dominguez, The sentence enhancement 479 F.3d 345, 347-49 (5th Cir. 2007). was proper because Barrera's prior conviction had as an element at least a threatened use of force. See id. at 348-49. Barrera's constitutional challenge to 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Barrera contends 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. Barrera properly Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). 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.

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