United States v. Tovar-Herrera, 10th Cir. (2005)
United States v. Tovar-Herrera, 10th Cir. (2005)
United States v. Tovar-Herrera, 10th Cir. (2005)
TENTH CIRCUIT
No. 05-1260
(D.C. No. 04-CR-453-RB)
JOSE TOVAR-HERRERA,
(D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the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.
*
imprisonment.
On appeal, Defendant challenges his sentence as being imposed in violation
of his constitutional rights, as recently articulated by the Supreme Court in United
States v. Booker, __U.S.__, 125 S. Ct. 738 (2005). Specifically, Defendant claims
that the district court committed constitutional error when it concluded by a
preponderance of the evidence that Defendant had been convicted of previous
crimes which would enhance his sentence under 8 U.S.C. 1326(b)(2). Issues
concerning the legality of Defendants sentence are reviewed de novo. United
States v. Gonzales-Lerma, 14 F.3d 1479, 1484 (10th Cir. 1994).
We agree with Defendants admission in his brief that [t]wo earlier
decisions . . . bar relief in this court. The first is this courts ruling in United
States v. Glover, 413 F.3d 1206 (10th Cir. 2005). The second is the Supreme
Courts decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998). 1
Thus, we find Defendants argument regarding his enhanced sentence unavailing
and conclude that his sentence was not unlawfully enhanced.
We AFFIRM the sentence imposed.
Entered for the Court
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Monroe G. McKay
Circuit Judge
-3-