* 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this opinion should not be published and is not precedent except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

FILED

March 15, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40589

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER HERNANDEZ-PENALOSA,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

(2:05-CR-663-ALL)

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Javier Hernandez-Penalosa appeals his

guilty-plea conviction of, and sentence for, violating 8 U.S.C. §

1326 by being found in the United States without permission

following deportation.

Hernandez-Penalosa challenges his sentence, arguing that

because the district court did not state that the Sentencing

Guidelines are advisory, did not consider his mitigating evidence,

and imposed a sentence identical to that which would have been

imposed under the mandatory Guidelines scheme, the sentencing court
2

effectively treated the Guidelines as mandatory. The government

seeks to enforce Hernandez-Penalosa’s sentencing waiver of appeal.

The record shows that the waiver was knowing and voluntary and,

based on the plain language of the agreement, applies to the

circumstances at hand. See United States v. Bond, 414 F.3d 542,

544 (5th Cir. 2005). Accordingly, we do not address HernandezPenalosa’s sentencing challenge. See id. at 546.

Hernandez-Penalosa argues that, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), his 57-month term of imprisonment

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 and

aggravated felony convictions as sentencing factors rather than

elements of the offense, which must be found by a jury. HernandezPenalosa’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). Hernandez-Penalosa properly

concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, and that he raises it here
3

solely to preserve it for further review. We GRANT the

government’s unopposed motion for summary affirmance of this issue.

The government moved for dismissal of the appeal as barred by

Hernandez-Penalosa’s waiver of appeal. As the challenge to the

constitutionality of § 1326(b) is arguably not waived, the motion

to dismiss is DENIED. As it is clear, however, that HernandezPenalosa’s appeal of his sentence is barred by his waiver and that

his sentence should be affirmed, the government’s motion for an

extension of time to file a brief is DENIED as unnecessary. For

the foregoing reasons Hernandez-Penalosa’s sentence is

AFFIRMED.