United States v. Cisneros-De Vera , 170 F. App'x 314 ( 2006 )


Menu:
  •                                                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    March 7, 2006
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 04-51385
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-
    Appellee,
    versus
    GUILLERMINA CISNEROS-DE VERA,
    Defendant-
    Appellant.
    -------------------------------------------------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 2:03-CR-657-ALL
    ------------------------------------------------------------
    Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Guillermina Cisneros-De Vera appeals her bench-trial conviction and sentence for being an
    alien who illegally re-entered or was found in the United States without the consent of the Attorney
    General after having been deported, in violation of 
    8 U.S.C. § 1326
    . Cisneros argues that the
    evidence was insufficient to prove beyond a reasonable doubt that she is an alien. She argues that as
    *
    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 R. 47.5, the court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    the daughter of a mother who was born in the United States, she had “derivative citizenship.” After
    all of the evidence in the light most favorable to the Government, we hold that there was substantial
    evidence from which any rational trier of fact could have found beyond a reasonable doubt that
    Cisneros’s mother was not born in the United States and thus was not a United States citizen from
    whom Cisneros could derive citizenship. See United States v. Turner, 
    319 F.3d 716
    , 720-21 (5th Cir.
    2003).
    Cisneros also argues that her 57-month sentence violates the Due Process Clause because it
    exceeds the maximum two-year sentence for the § 1326(a) offense charged in the indictment. Her
    constitutional challenge is foreclosed by Almendarez-Torres v. United States, 
    523 U.S. 224
    , 235
    (1998). Although Cisneros 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). Cisneros properly concedes that her argument is
    foreclosed in light of Almendarez-Torres and circuit precedent, but she raises it here to preserve it
    for further review.
    AFFIRMED.
    -2-
    

Document Info

Docket Number: 04-51385

Citation Numbers: 170 F. App'x 314

Judges: Barksdale, Clement, Per Curiam, Stewart

Filed Date: 3/7/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023