Summary Calendar UNITED STATES OF AMERICA v. Victor Aguilera-Ayala, also known as Manuel A Agurlar

* 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should not be published and is not precedent except under the limited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. 07-51264
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VICTOR AGUILERA-AYALA, also known as Manuel A Agurlar
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-1259-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Victor Aguilera-Ayala (Aguilera) appeals the 38-month sentence imposed
following his guilty plea conviction for illegal reentry following a previous
deportation. Aguilera argues that the district court erred in applying an eight-
level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(C), for an aggravated
felony. He argues that the Government did not establish by competent evidence
“the fact” of his prior convictions. Specifically, he asserts that, in light of
United States Court of Appeals
Fifth Circuit
F I L E D
September 11, 2008
Charles R. Fulbruge III
Clerk

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No. 07-51264
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Shepard v. United States, 544 U.S. 13 (2005) and United States v. Gutierrez-
Ramirez, 405 F.3d 352 (5th Cir. 2005), the California abstract of judgments
utilized by the district court are considered “unreliable” to establish the
existence of his prior convictions.
Aguilera’s reliance on Gutierrez-Ramirez is misplaced. In Gutierrez-
Ramirez, 405 F.3d at 358-59, this court determined that the district court erred
under Taylor and Shepard when it “exclusively” relied on a California abstract
of judgment to determine whether the defendant’s prior conviction qualified as
a “drug trafficking offense” for purposes of a 16-level enhancement under
§ 2L1.2(b)(1)(A)(I). As Aguilera acknowledges in his brief, his argument does not
implicate Taylor or Shepard because he is only challenging the existence of his
prior convictions. See United States v. Neri-Hernandes, 504 F.3d 587, 590-92
(5th Cir. 2007), cert. denied, 128 S. Ct. 1106 (2008). Because Aguilera failed to
produce any evidence calling into question the reliability of the abstract of
judgments, the district court did not err in using them to establish Aguilera’s
prior convictions. See id. at 592.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Aguilera
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. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
Accordingly, the judgment of the district court is AFFIRMED.

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