Conference Calendar UNITED STATES OF AMERICA v. Welman Alvarenga-Hernandez, also known as Wellman Slvarenga, also known as Gwelman…

* 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should not be published and is not precedent except under the limited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. 07-40054
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
WELMAN ALVARENGA-HERNANDEZ, also known as Wellman Slvarenga,
also known as Gwelman Alvarenza
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-642-1
Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Welman Alvarenga-Hernandez (Alvarenga) appeals his sentence for illegal
reentry following deportation. Specifically, Alvarenga challenges the
enhancement of his sentence based upon the district court’s determination that
his prior conviction for second degree assault is a crime of violence for purposes
of U.S.S.G. § 2L1.2(b)(1)(C). Because he has been released from prison and
United States Court of Appeals
Fifth Circuit
F I L E D
April 15, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40054
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deported to Mexico, his appeal of his sentence is moot. See United States v.
Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Alvarenga
challenges the constitutionality of 8 U.S.C. § 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. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1995). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART.

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