United States v. Hernandez-Juarez , 242 F. App'x 980 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 9, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40363
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARTIN HERNANDEZ-JUAREZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1719-ALL
Before REAVLEY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Martin Hernandez-Juarez was convicted pursuant to a guilty plea of
violating 8 U.S.C. § 1326. He now appeals, raising three arguments.
Hernandez-Juarez argues, in light of Apprendi v. New Jersey, 530 U.S. 466(2000), that the 86-month term of imprisonment imposed in his case exceeds the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 06-40363
statutory maximum sentence allowed for the § 1326(a) offense charged in his
indictment. 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 be found by a jury. Hernandez-Juarez’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). Hernandez-Juarez
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.
Hernandez-Juarez argues that the district court erred by enhancing his
sentence pursuant to U.S.S.G. § 2L1.2 (b)(1)(A)(i) based on a finding that he was
previously deported following a drug trafficking offense for which the sentence
imposed exceeded 13 months. Hernandez-Juarez contends his Texas conviction
for delivery of a controlled substance is not a drug trafficking offense for
purposes of § 2L1.2 because Texas law defines a “delivery” for purposes of TEX.
HEALTH & SAFETY CODE ANN. § 481.112(a) as including an “offer to sell.” The
indictment and judgment of conviction pertaining to Hernandez-Juarez’s prior
offense make clear that he was convicted of conduct involving the actual transfer
of a controlled substance. The district court did not err in applying the
enhancement. See United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.
2007).
Finally, Hernandez-Juarez asserts that the district court erred in
calculating his criminal history points. Hernandez-Juarez explicitly waived his
objection to this ground in district court. Further, he does not indicate why his
2
No. 06-40363
convictions should be considered related, does not offer adequate argument and
citation in support of his assertion, and does not make a statement regarding the
appropriate standard of review. The claim is thus also abandoned due to
inadequate briefing. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
AFFIRMED.
3
2