United States v. Marmolejos-Agramonte ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-50762 August 22, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GUARIONEX MARMOLEJOS-AGRAMONTE, also known as Pedro Lebron-
Gutierrez
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-1040-ALL
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Guarionex Marmolejos-Agramonte appeals his guilty plea conviction and
sentence for illegal reentry into the United States after deportation following an
aggravated felony conviction in violation of 8 U.S.C. § 1326. 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
*
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should not be published and is not precedent except under the limited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. 06-50762
be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Marmolejos-Agramonte’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). Marmolejos-Agramonte 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.
Marmolejos-Agramonte argues that his trial counsel was ineffective in that
he did not request a four-level downward departure pursuant to the fast track
program under U.S.S.G. § 5K3.1 during the plea negotiations. This court
generally will not consider claims of ineffective assistance of counsel on direct
appeal except in those “rare cases where the record allowed [this court] to
evaluate fairly the merits of the claim.” United States v. Higdon, 832 F.2d 312,
313-14 (5th Cir. 1987). Although the district court did not have the opportunity
to develop the record concerning this issue, further development of the record is
not necessary for the resolution of this issue. The Western District of Texas does
not have a fast track program under § 5K3.1. See United States v. Aguirre-Villa,
460 F.3d 681, 682-83 (5th Cir. 2006), petition for cert. filed, 75 U.S.L.W. 3707(U.S. June 29, 2007) (No. 06-7792) . Therefore, Marmolejos-Agramonte’s counsel
was not ineffective for failing to raise a meritless argument. See United States
v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
Marmolejos-Agramonte states in one sentence that his due process rights
were violated because he was convicted and sentenced in the Western District
of Texas, which does not have a fast track program, while defendants in some
other districts such as a the Eastern District of California can seek a downward
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No. 06-50762
departure under the fast track program. Because Marmolejos-Agramonte does
not address this issue in the body of his brief, he has waived this issue on appeal.
See United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
AFFIRMED.
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