United States v. Gomez-Luna

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10876
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO GOMEZ-LUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-20-1-P
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June 14, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Antonio Gomez-Luna (Gomez) appeals from his conviction and
sentence for illegal reentry into the United States following
deportation. See 8 U.S.C. § 1326. He argues that his underlying
state conviction for burglary of a habitation should not have
qualified as an aggravated felony, because the evidence did not
support a burglary conviction. Gomez further argues that because
the state felony conviction was invalid and violated due process,
the deportation order that served as an element of the offense of
illegal reentry also was invalid. For the first time on appeal,

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Gomez argues that the district court should have considered
recent amendments to the Legal Immigration Family Equity Act
(LIFE Act), which would have rendered inapplicable the sentence
enhancement for being an aggravated felon.
Gomez waived the right to appeal his sentence. Waivers of
the right to appeal are valid and enforceable. United States v.
Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Moreover, Gomez may
not attack collaterally a state court conviction that was used in
a federal sentencing procedure. See Custis v. United States, 511
U.S. 485, 493-97 (1994) (defendant has no right to collaterally
attack prior convictions used for enhancement purposes). Gomez
pleaded guilty to the underlying state burglary conviction. By
doing so, he admitted to the existence of all facts necessary to
establish guilt. See Cook v. Lynaugh, 821 F.2d 1072, 1075 (5th
Cir. 1987). Gomez fails to explain how a challenge to the
sufficiency of a state court conviction, for which he pleaded
guilty, satisfies the requirements for establishing a violation
of due process during a deportation proceeding. See United
States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999),
cert. denied, 120 S. Ct. 838 (2000).
Likewise, Gomez fails to demonstrate how the LIFE Act
amendments apply to his case. An alien convicted of a felony or
three or more misdemeanors committed in the United States is not
eligible under the LIFE Act’s amendments. See LIFE Act,
§ 1104(c), Pub. L. No. 106-553, 114 Stat. 2762 (2000). The
record reveals that Gomez has been convicted of one felony and
four misdemeanors committed in the United States. The issues

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raised by Gomez on appeal are frivolous. Accordingly, his appeal
is DISMISSED.

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