United States v. Olvera-Palacios

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 25, 2007
Charles R. Fulbruge III
No. 06-40029 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS OLVERA-PALACIOS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
No. 1:05-CR-746
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Louis Olvera-Palacios appeals the sentence imposed following
his guilty-plea conviction of being an alien unlawfully found in
the United States after deportation after a conviction of an ag-
gravated felony. He argues that the district court erroneously
calculated his criminal history points for purposes of applying the
sentencing guidelines by considering three prior, uncounseled, mis-
demeanor convictions of burglary of a vehicle, theft, and posses-
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
sion of marihuana when assessing his criminal history points. He
contends that his waiver of his right to counsel in those cases was
invalid because the district court failed to inform him that he was
entitled to court-appointed counsel if he could not afford to re-
tain counsel and failed to inform him of the punishment range for
each charge.
The records pertaining to Olvera-Palacios’s misdemeanor con-
victions, however, show that he knowingly and voluntarily waived
his right to be represented by counsel when he entered his guilty
pleas. See Iowa v. Tovar, 541 U.S. 77, 81 (2004). Accordingly,
the district court did not misapply the sentencing guidelines by
using the prior convictions for purposes of determining a criminal
history score.
Olvera-Palacios claims that, in light of Apprendi v. New Jer-
sey, 530 U.S. 466 (2000), his sentence exceeds the statutory maxi-
mum two-year term of imprisonment under 42 U.S.C. § 1326(b) because
he was sentenced under § 1326(b) on the basis of facts that were
not alleged in the indictment, admitted by him, or proved beyond a
reasonable doubt. This constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). Although
Olvera-Palacios contends that Almendarez-Torres was incorrectly de-
cided and that a majority of the Supreme Court would overrule it in
light of Apprendi, this court has repeatedly rejected such argu-
ments 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). See also Rangel-Reyes v. United
States, 126 S. Ct. 2873 (2006). Olvera-Palacios 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.
AFFIRMED.