United States v. Armendariz-Moreno

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should not be published and is not precedent except under the limited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