United States v. Delgadillo-Bernal

* 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this opinion should not be published and is not precedent except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. 05-40111
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JUAN DELGADILLO-BERNAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1632-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Juan Delgadillo-Bernal (“Delgadillo”) appeals the
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 a felony. The district
court sentenced Delgadillo to 18 months of imprisonment and three
years of supervised release.
Delgadillo’s sole issue on appeal is a challenge to the
validity of Almendarez-Torres v. United States, 523 U.S. 224

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No. 05-40111
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(1998), and the use of his prior conviction to increase his
sentence. Delgadillo asserts for the first time on appeal that
the “felony” and “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.
Delgadillo concedes that his argument is foreclosed by circuit
precedent and admits that he raises the argument merely to
preserve it for Supreme Court review.
As Delgadillo 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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