UNITED STATES v. IBARRA MORADO (2019)

United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Luis Francisco IBARRA-MORADO, Defendant-Appellant

No. 18-50741

Decided: April 18, 2019

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.

Joseph H. Gay, Jr., Assistant U.S. Attorney, Margaret Mary Embry, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff - Appellee Kristin L. Davidson, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, Defendant - Appellant

Luis Francisco Ibarra-Morado argues that his 36-month, within-guidelines sentence for illegal reentry under 8 U.S.C. § 1326(b)(1) violates his due process rights because his sentence was enhanced based on a prior felony conviction that was not charged in the indictment. As he correctly concedes, his argument is foreclosed by the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he raises the issue only to preserve it for further review. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).

AFFIRMED.

FOOTNOTES

FOOTNOTE.

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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