United States v. Quintero-Herrera ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20396
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL QUINTERO-HERRERA,
also known as Miguel Angel Quintero-Guerrero,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(H-99-CR-528-1)
September 24, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Quintero-Herrera pled guilty to illegally reentering the
United States in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He
challenges the district court’s calculation of his criminal history
as well as its finding that his prior forgery conviction was an
aggravated felony.
Quintero-Herrera claims that the district court should have
*
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this opinion should not be published and is not precedent except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.
permitted him to attack his prior conviction collaterally at
sentencing because the conviction is void. But a defendant has no
right to bring such a challenge at sentencing, with the sole
exception of convictions obtained in violation of the right to
counsel.1
Quintero-Herrera also contends that his prior forgery
conviction was not an aggravated felony under 8 U.S.C. §
1101(a)(43). That section states that “an offense relating to ...
forgery” with a “term of imprisonment” of at least one year is an
aggravated felony.2 Quintero-Herrera was sentenced to one year in
a state jail for a type of forgery. His argument is without merit.
In addition, Quintero-Herrera argues that his prior conviction
was an element of the offense that should have been listed in the
indictment. He concedes that Almendarez-Torres v. United States3
forecloses this issue, and raises it merely to preserve it for
further review.
AFFIRMED.
1
Daniels v. United States, 121 S. Ct. 1578, 1580 (2001).
2
8 U.S.C. § 1101(a)(43)(R).
3
523 U.S. 224 (1998).