United States v. Noriega-Puente

*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this opinion should not be published and is not precedent except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
February 15, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-50538
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO NORIEGA-PUENTE, also known as Avaro Noriega, also known as
Chito Salas, also known as Jose Noriega, also known as Mario
Arriaga, also known as Arturo Sanchez-Garcia,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(1:04-CR-269-1)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that Appellee’s unopposed motion to vacate the
sentence is GRANTED.
IT IS FURTHER ORDERED that Appellee’s unopposed motion to
remand this case to District Court for re–sentencing consistent
with our decision in United States v. Bonilla-Mungia, 422 F.3d 316,
320 (5th Cir.), cert. denied, 126 S. Ct. 819 (2005), is GRANTED.

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2
For purposes of that re-sentencing, Noriega’s constitutional
challenge to the sentencing provisions of 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Noriega contends Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466
(2000), Almendarez-Torres remains binding precedent. See United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005). Noriega concedes Almendarez-Torres and
circuit precedent foreclose this challenge; he raises it to
preserve it for possible further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RE–SENTENCING

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