United States v. Castillo-Hernandez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 14, 2003
Charles R. Fulbruge III
Clerk
No. 02-51358
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISIDRO CASTILLO-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1173-ALL-DB
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Isidro Castillo-Hernandez (“Castillo”) appeals his
conviction and sentence for illegal reentry subsequent to
deportation. 8 U.S.C. § 1326(b). He argues that the district
court abused its discretion in excluding from the evidence at
trial the clothing he was wearing at the time of arrest. He
contends it would have cast doubt upon the testimony of the
Government’s key witness, Border Patrol Agent Mesa, who testified
*
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that this opinion should not be published and is not precedent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. 02-51358
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that Castillo’s clothes were wet and muddy when he was found near
the Rio Grande River.
Although it is debatable whether the district court abused
its discretion in excluding the clothing, see e.g., United States
v. Colatriano, 624 F.2d 686, 689 (5th Cir. 1980), the error was
harmless. Whether the clothes were still wet or muddy would not
necessarily have had an impact on Agent Mesa’s credibility, as
Officer Legaretta’s testimony indicated that Castillo may have
been allowed to clean up or change into clean clothes after his
arrest, thus clouding whether the clothes inventoried at the
prison were the ones Castillo was wearing when Agent Mesa
arrested him. Moreover, the evidence showed that Castillo was
discovered 100 yards north of the border, that he admitted he was
not a United States citizen, that he did not have permission to
be in this country, and that he had been previously deported. In
light of the overwhelming and unrebutted evidence of Castillo’s
guilt, the district court’s exclusion of the clothing was
harmless. See United States v. Haese, 162 F.3d 359, 364 (5th
Cir. 1998).
Castillo argues that under the reasoning of Apprendi v. New
Jersey, 530 U.S. 466 (2000), the sentencing provision of 8 U.S.C.
§ 1326(b)(2) is unconstitutional. Castillo concedes that this
issue is foreclosed by Almendarez Torres v. United States, 523
U.S. 224, 235 (1998), but he raises it to preserve it for
possible Supreme Court review.
No. 02-51358
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Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000). This court must therefore follow the
precedent set in Almendarez-Torres “unless and until the Supreme
Court itself determines to overrule it.” Dabeit, 231 F.3d at 984(internal quotation and citation omitted).
AFFIRMED.