USA v. Armendariz-Moreno

Filing 920071212

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED
No. 07-40225 Conference Calendar
December 12, 2007 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. ARMANDO ARMENDARIZ-MORENO, also known as Armando Moreno-Ortiz Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:06-CR-1029-ALL

Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges. PER CURIAM:* Armando Armendariz-Moreno (Armendariz) pleaded guilty to illegal reentry after deportation and after having been convicted of an aggravated felony. On appeal, Armendariz challenges the district court's characterization of his prior Texas conviction of unauthorized use of a motor vehicle as an aggravated felony for sentencing purposes. Armendariz concedes that this issue is foreclosed, but he nevertheless seeks to preserve it for Supreme Court review 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40225 in light of the Supreme Court's decision in Leocal v. Ashcroft, 543 U.S. 1 (2004). As Armendariz concedes, this issue is foreclosed. See Brieva-Perez v. Gonzales, 482 F.3d 356, 360-61 (5th Cir. 2007); United States v. Galvan-Rodriguez, 169 F.3d 217, 219-20 (5th Cir. 1999). In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Armendariz also challenges the constitutionality of 8 U.S.C. § 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. This court has held that this issue is "fully foreclosed from further debate." United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). AFFIRMED.

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