United States v. Pazzi-De Hoyos

* 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this opinion should not be published and is not precedent except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
July 25, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10840
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO PAZZI-DE HOYOS,
Defendant-Appellant.
Consolidated with
No. 06-10841
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO PAZZI-DE HOYOS, also known
as Mario Alberto Mendoza-Garcia,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CR-53-ALL
USDC No. 5:06-CR-13-ALL
--------------------
Before DAVIS, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*

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No. 06-10840
c/w No. 06-10841
-2-
Mario Alberto Pazzi-De Hoyos pleaded guilty to illegal entry
after deportation in violation of 8 U.S.C. § 1326. Pazzi-De
Hoyos’ supervised release with respect to a prior conviction was
also revoked. Pazzi-De Hoyos appeals his conviction and
revocation, arguing that (1) venue in the Northern District of
Texas was improper with respect to his illegal reentry guilty
plea conviction and (2) the district court erred when it used his
prior aggravated felony conviction to enhance his illegal reentry
sentence.
Pazzi-De Hoyos’ physical presence as well as the illegal
status of his presence was discovered by immigration authorities
when he was within the Northern District of Texas. Under
8 U.S.C. § 1326, venue was proper in the Northern District. See
United States v. Asibor, 109 F.3d 1023, 1037 (5th Cir. 1997);
United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.
1996).
Pazzi-De Hoyos 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. Pazzi-De Hoyos’
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Pazzi-De Hoyos
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

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No. 06-10840
c/w No. 06-10841
-3-
repeatedly rejected such arguments on the basis that Almendarez-
Torres remains binding. See United States v. Garza-Lopez, 41
F.3d 268, 276 (5th Cir. 2005). Pazzi-De Hoyos 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.
AFFIRMED.

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