USA v. Zelaya-Parada, No. 06-50084 (5th Cir. 2007)
Annotate this Case
Download PDF
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 3, 2007 Charles R. Fulbruge III Clerk No. 06-50084 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE JIAMON ZELAYA-PARADA, also known as Jose Jaime Zelaya-Parada, also known as Jose Jaime Zelaya, also known as Jose Jaime Parada Defendant-Appellant. -------------------Appeal from the United States District Court for the Western District of Texas USDC No. 3:05-CR-1713-ALL -------------------Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Zelaya-Parada appeals his guilty-plea conviction of, and sentence for, violating 8 U.S.C. § 1326 by being found in the United States without permission after deportation. Zelaya-Parada argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 31-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. He challenges the constitutionality of § 1326(b) s treatment of prior felony * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 06-50084 -2and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. Zelaya-Parada s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although he contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi, we have repeatedly 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). Zelaya-Parada properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review. Zelaya-Parada also argues that his guilty plea is not valid because (1) the district court failed to give him full and correct information regarding the maximum statutory penalty that he would face for the offense and (2) the factual basis for his plea was insufficient to establish that he was found in the United States. Zelaya-Parada s first argument is premised on the unconstitutionality of § 1326. However, the Supreme Court has held that § 1326 is constitutional. at 246. Almendarez-Torres, 523 U.S. As to the second argument, Zelaya-Parada has not shown plain error. See United States v. Vonn, 535 U.S. 55, 1054-55 2002; United States v. Pacheco-Medina, 212 F.3d 1162, 1163-64 (9th Cir. 2000). As the Government seeks to enforce Zelaya-Parada's waiver of sentencing issues and the waiver is valid, we do not address No. 06-50084 -3those issues. See United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006). AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
