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UNITED
STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before HARTZ, BARRETT, and McCONNELL, Circuit Judges.
Defendant-appellant Adalberto Mendoza-Martinez pled guilty to reentry of
a deported alien previously convicted of an aggravated felony. In calculating the
sentence, pursuant to the United States Sentencing Guidelines as interpreted and
revised by United States v. Booker, 125 S. Ct. 738 (2005), the district court
applied a 16-level sentencing enhancement for a prior conviction for burglary of a
habitation, which is deemed to be a crime of violence. The sole issue on appeal is
whether the district court may use a prior conviction as the basis for a sentencing
enhancement. As the Defendant recognizes in his brief, this issue is controlled by
the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S.
224 (1998). See United States v. Moore, 401 F.3d 1220, 1222-24 (10th
Cir. 2005)
(continuing to apply Almendarez-Torres even after Booker). Mr.
Mendoza-Martinez raises this issue "in order to preserve it for Supreme Court review."
Appellant's Br. 5.
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*.After examining the briefs and appellate
record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
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