United States v. Lozano-Herrera

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40972
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS LOZANO-HERRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-216-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Carlos Lozano-Herrera (“Lozano”) pleaded guilty to one count
of being found in the United States without having obtained
permission to re-enter after deportation and was sentenced to
46 months of imprisonment. Lozano argues, for the first time on
appeal, that 8 U.S.C. § 1326(b) is unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Lozano’s argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).

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No. 04-40972
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Also for the first time on appeal, Lozano, relying on the
possibility that Almendarez-Torres will be overruled, as well as
on Blakely v. Washington, 124 S. Ct. 2531 (2004), argues that the
federal sentencing guidelines are unconstitutional because they
permit the enhancement of a sentence based on prior convictions.
Lozano’s argument fails because Almendarez-Torres has not been
overruled and because the enhancement of a sentence based on
prior convictions does not violate the Sixth Amendment. See
United States v. Booker, 125 S. Ct. 738, 756 (2005).
The judgment of the district court is AFFIRMED.

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