United States v. Armendariz-Moreno , 258 F. App'x 666 ( 2007 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    December 12, 2007
    No. 07-40225
    Conference Calendar            Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    ARMANDO ARMENDARIZ-MORENO, also known as Armando Moreno-Ortiz
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:06-CR-1029-ALL
    Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
    PER CURIAM:*
    Armando Armendariz-Moreno (Armendariz) pleaded guilty to illegal
    reentry after deportation and after having been convicted of an aggravated
    felony.
    On appeal, Armendariz challenges the district court’s characterization of
    his prior Texas conviction of unauthorized use of a motor vehicle as an
    aggravated felony for sentencing purposes. Armendariz concedes that this issue
    is foreclosed, but he nevertheless seeks to preserve it for Supreme Court review
    *
    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    should not be published and is not precedent except under the limited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. 07-40225
    in light of the Supreme Court’s decision in Leocal v. Ashcroft, 
    543 U.S. 1
     (2004).
    As Armendariz concedes, this issue is foreclosed. See Brieva-Perez v. Gonzales,
    
    482 F.3d 356
    , 360-61 (5th Cir. 2007); United States v. Galvan-Rodriguez, 
    169 F.3d 217
    , 219-20 (5th Cir. 1999).
    In light of Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), Armendariz also
    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 found by a jury. This court has held that this issue is
    “fully foreclosed from further debate.” United States v. Pineda-Arrellano, 
    492 F.3d 624
    , 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
    AFFIRMED.
    2
    

Document Info

Docket Number: 07-40225

Citation Numbers: 571 F.3d 490, 258 F. App'x 666, 2009 WL 1653551

Judges: Reavley, Barksdale, Garza

Filed Date: 12/12/2007

Precedential Status: Non-Precedential

Modified Date: 10/19/2024