Summary Calendar UNITED STATES OF AMERICA v. Jose Luis Espinosa-Hernandez, also known as Jose Luis Espinosa

* 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should not be published and is not precedent except under the limited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. 07-20183
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE LUIS ESPINOSA-HERNANDEZ, also known as Jose Luis Espinosa
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-328-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Espinosa-Hernandez appeals the sentence imposed following his
conviction of one charge of illegal reentry into the United States. He argues that
the district court erred by imposing a sentence that exceeded the pertinent
guidelines recommendation. Our review of the record, including the exhaustive
reasons given by the district court in support of its judgment, shows no
United States Court of Appeals
Fifth Circuit
F I L E D
October 15, 2007
Charles R. Fulbruge III
Clerk

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No. 07-20183
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reversible error in connection with Espinosa-Hernandez’s sentence. See United
States v. Smith, 440 F.3d 704, 706-08 (5th Cir. 2006).
Espinosa-Hernandez also challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as sentencing factors
rather than elements of the offense that must be found by a jury. Espinosa-
Hernandez’s constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although he contends that Almendarez-
Torres was incorrectly decided and that a majority of the Supreme Court would
overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466
(2000), we have repeatedly rejected such arguments on the basis that
Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d
268, 276 (5th Cir. 2005). Espinosa-Hernandez properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit precedent, but
he raises it here to preserve it for further review. The judgment of the district
court is AFFIRMED.

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