United States v. Hernandez-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this opinion should not be published and is not precedent except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
May 15, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40599
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SILVINO HERNANDEZ-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(5:05-CR-2370-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Silvino Hernandez-Hernandez (Hernandez)
appeals the 41-month term of imprisonment imposed on his guilty-
plea conviction for illegal reentry following deportation. He
objects to the 16-level “crime of violence” enhancement based on
his prior conviction for aggravated battery with a firearm under
Florida Statute Annotated § 784.045(1)(a). After Hernandez filed
his appeal, we held that the relevant offense qualifies as crime of
violence under the Sentencing Guidelines “because it has as an
element at least a threatened use of force.” United States v.

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2
Dominguez, 479 F.3d 345, 347-49 (5th Cir. 2007); see
§ 2L1.2(b)(1)(A)(ii), comment. (n.1(B)(iii)). The enhancement of
Hernandez’s sentence was proper.
Hernandez further asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(a) and (b) cause the statute
to be unconstitutional. This argument is foreclosed under
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Hernandez 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 repeatedly have 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). Hernandez properly concedes that this argument is
foreclosed and that he raises it only to preserve it for further
review.
The judgment of the district court is
AFFIRMED.

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