United States v. Mortera , 168 F. App'x 657 ( 2006 )

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. 05-40364
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME SEQUEDA MORTERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-822-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jaime Sequeda Mortera pleaded guilty to being illegally
present in the United States after deportation following an
aggravated felony conviction. He was sentenced to a 21-month
term of imprisonment and to a three-year period of supervised
release. Sequeda Mortera appeals his conviction and his
sentence.
Sequeda Mortera’s guideline offense level was increased by
eight levels because he was convicted in state court of felony
*
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this opinion should not be published and is not precedent except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. 05-40364
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possession of a controlled substance prior to his deportation.
He contends that his prior conviction involved simple possession
and should not have been regarded as an aggravated felony for
purposes of U.S.S.G. § 2L1.2(b)(1)(C) (2004). This argument is
foreclosed. See United States v. Rivera, 265 F.3d 310, 312-13
(5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d 691,
693-94 (5th Cir. 1997).
Sequeda Mortera contends that the district court abused its
discretion in imposing as a condition of supervised release the
requirement that he cooperate in the collection of a DNA sample.
Because this issue is not ripe for review, this court does not
have jurisdiction and this portion of the appeal must be
dismissed. See United States v. Riascos-Cuenu, 428 F.3d 1100,
1101–02 (5th Cir. 2005), petition for cert. filed, (Jan. 9, 2006)
(No. 05-8662).
Sequeda Mortera 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 proved beyond a reasonable doubt in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Sequeda Mortera contends that
Almendarez-Torres has been “impliedly overruled” by subsequent
Supreme Court decisions, including Apprendi, “[t]his court has
repeatedly rejected arguments like the one made by [Sequeda
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Mortera] and has held that Almendarez-Torres remains binding
despite Apprendi.” United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Sequeda
Mortera concedes that the issue is foreclosed. He has raised the
issue to preserve it for further review.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.