eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2006-02

United States v. Herrera-Trejo , 169 F. App'x 273 ( 2006 )


Menu:
 
  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40819
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TITO HERRERA-TREJO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2108-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Tito Herrera-Trejo (Herrera) appeals his guilty-plea
conviction and sentence for re-entry of a deported alien.
Herrera argues that the district court erred by characterizing
his state felony conviction for possession of a controlled
substance as an “aggravated felony” under U.S.S.G.
§ 2L1.2(b)(1)(C).   Herrera’s argument is without merit.      See
United States v. Hernandez-Avalos,
    251 F.3d 505
    , 508 (5th Cir.
*
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this opinion should not be published and is not precedent except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. 05-40819
-2-
2001); United States v. Hinojosa-Lopez,
    130 F.3d 691
    , 694 (5th
Cir. 1997).
Herrera also argues that the “felony” and “aggravated
felony” provisions of
    8 U.S.C. § 1326
    (b)(1) and (2) are
unconstitutional.   This constitutional challenge is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
    , 235 (1998).
Although Herrera contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey,
    530 U.S. 466
     (2000), 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).   Herrera 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.
The judgment of the district court is AFFIRMED.