USA v. Orduno-Gomez, No. 05-11087 (5th Cir. 2007)

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United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 14, 2007 Charles R. Fulbruge III Clerk No. 05-11087 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CARLOS MAURICIO ORDUNO-GOMEZ, also known as Carlos Mauricio Orduno Gomez, also known as Carlos Oruno, also known as Christian Cardoza, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas (4:05-CR-28-ALL) Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Carlos Mauricio Orduno-Gomez appeals his guilty-plea conviction and subsequent sentence for illegal reentry. Orduno s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Orduno contends Almendarez-Torres was incorrectly decided and a majority of the Supreme Court would overrule it in * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such contentions because Almendarez-Torres remains binding. See, e.g., United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). properly concedes his claim is foreclosed in the Orduno light of Almendarez-Torres and circuit precedent; he raises it only to preserve it for further review. The district court erred in enhancing Orduno s sentence pursuant to U.S.S.G. § 2L1.2(b(1)(C) by determining his state conviction for simple possession of a controlled substance was an aggravated felony . See United States v. Estrada-Mendoza, __F.3d__, No. 05-41627, 2007 WL 6583, *2 (5th Cir. 3 Jan. 2007). Consequently, Orduno s sentence is vacated and this matter remanded for resentencing. Id. Accordingly, we need not reach his claim, raised for the first time on appeal, that restricting the U.S.S.G. § 5K3.1 earlydisposition program to certain geographical locations violated his due-process and equal-protection rights. See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005). CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING 2

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