United States v. Orduno-Gomez

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 14, 2007
Charles R. Fulbruge III
Clerk
No. 05-11087
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MAURICIO ORDUNO-GOMEZ, also known as Carlos Mauricio
Orduno Gomez, also known as Carlos Oruno, also known as Christian
Cardoza,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:05-CR-28-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Carlos Mauricio Orduno-Gomez appeals his guilty-plea
conviction and subsequent sentence for illegal reentry.
Orduno’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Orduno contends Almendarez-Torres was incorrectly
decided and a majority of the Supreme Court would overrule it in
*
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this opinion should not be published and is not precedent except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.
the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have
repeatedly rejected such contentions because Almendarez-Torres
remains binding. See, e.g., United States v. Garza-Lopez, 410 F.3d
268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Orduno
properly concedes his claim is foreclosed in the light of
Almendarez-Torres and circuit precedent; he raises it only to
preserve it for further review.
The district court erred in enhancing Orduno’s sentence
pursuant to U.S.S.G. § 2L1.2(b(1)(C) by determining his state
conviction for simple possession of a controlled substance was an
“aggravated felony”. See United States v. Estrada-Mendoza,
__F.3d__, No. 05-41627, 2007 WL 6583, *2 (5th Cir. 3 Jan. 2007).
Consequently, Orduno’s sentence is vacated and this matter remanded
for resentencing. Id.
Accordingly, we need not reach his claim, raised for the first
time on appeal, that restricting the U.S.S.G. § 5K3.1 early-
disposition program to certain geographical locations violated his
due-process and equal-protection rights. See United States v.
Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
2