United States v. Rea-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this opinion should not be published and is not precedent except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
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40271
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSVALDO REA-HERRERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-746-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Osvaldo Rea-Herrera (“Rea”) appeals the 46-month sentence
imposed following entry of his guilty plea to a charge of being
found illegally in the United States after he had been removed
subsequent to his conviction for an aggravated felony. Rea’s
sole issue on appeal is a challenge to the validity of
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and the
use of his prior conviction to increase his sentence. Rea
asserts for the first time on appeal that the “felony” and

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No. 05-40271
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“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional because they are treated as sentencing factors
rather than as elements of the offense. Rea concedes that his
arguments are foreclosed by circuit precedent and admits that he
raises the arguments merely to preserve them for Supreme Court
review.
As Rea concedes, his arguments are foreclosed. See United
States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.),
cert. denied, 126 S. Ct. 253 (2005); United States v. Mancia-
Perez, 331 F.3d 464, 470 (5th Cir. 2003). The Supreme Court in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), did not
overrule Almendarez-Torres, and we must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Mancia-Perez, 331 F.3d at 470 (internal quotation marks and
citation omitted).
AFFIRMED.

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