USA v. Lucero-Ramirez

Filing 920070821

Opinion

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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 21, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-51691 c/w No. 07-50060 Conference Calendar UNITED STATES OF AMERICA Plaintiff-Appellee v. JOSE ARMANDO LUCERO-RAMIREZ Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 1:06-CR-199-ALL USDC No. 1:06-CR-219-ALL Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Jose Armando Lucero-Ramirez (Lucero) appeals his guilty-plea conviction of, and sentence for, violating 8 U.S.C. 1326 by being found in the United States without permission after deportation. He argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 57-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51691 c/w No. 07-50060 1326(a) offense charged in his indictment. He 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. Lucero's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although he 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. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005); Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United States v. Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007). Lucero 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. Lucero's appeal of his revocation of supervised release was consolidated with the instant appeal. He has not, however, raised any argument with respect to these proceedings. Any such claim is thus deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The judgments of the district court are AFFIRMED. The Government's motion for summary affirmance is GRANTED. The Government's motion for an extension of time to file a brief is DENIED. 2

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