United States v. Sierra-Hernandez

* 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this opinion should not be published and is not precedent except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
June 1, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40646
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALCIDES ENRIQUE SIERRA-HERNANDEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2376
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Alcides Enrique Sierra-Hernandez (Sierra) appeals his
guilty-plea conviction and 15-month sentence for being found in
the United States after being removed, in violation of 8 U.S.C.
§ 1326. Sierra contends that the district court erred in
imposing a sentencing enhancement for his prior conviction for
possession of cocaine, in light of Lopez v. Gonzales, 127 S. Ct.
625 (2006). Because Sierra has completed the confinement portion
of his sentence, any argument that the prison term should be

-- 1 of 3 --

No. 06-40646
-2-
reduced is moot and the only portion of the sentence remaining
for consideration is his term of supervised release. As the
Government notes, however, Sierra has been deported. Because
Sierra would is barred from returning to the United States, and
because there is no indication that Sierra has waived his right
to be present for resentencing, his challenge to the validity of
his sentence is moot. See United States v. Rosenbaum-Alanis, ___
F.3d ___, 2007 WL 926832, at *2 (5th Cir. March 29, 2007)(No. 05-
41400). The appeal is therefore DISMISSED as to this ground.
Sierra also argues, in light of Apprendi v. New Jersey, 530
U.S. 466 (2000), that the 15-month term of imprisonment imposed
in his case exceeds the statutory maximum sentence allowed for
the § 1326(a) offense charged in his indictment. He 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.
Sierra’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, 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.), cert.
denied, 126 S. Ct. 298 (2005). Sierra properly concedes that his
argument is foreclosed in light of Almendarez-Torres and

-- 2 of 3 --

No. 06-40646
-3-
circuit precedent, but he raises it here to preserve it for
further review. His conviction is thus AFFIRMED.

-- 3 of 3 --