U.S. v. Davila-Rodriguez

Full title: UNITED STATES of America, Plaintiff-Appellee, v. David DAVILA-RODRIGUEZ…

Court: United States Court of Appeals, Fifth Circuit

Date published: May 2, 2007

229 F. App'x 287 (5th Cir. 2007)

Opinion

No. 06-50572 Summary Calendar.

May 2, 2007.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, No. 3:05-CR-2743-ALL.

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

David Davila-Rodriguez appeals his guilty-plea conviction of, and sentence for, attempted illegal reentry into the United States following removal. Davila-Rodriguez contends that the district court violated the Sixth Amendment by denying his request, the day before sentencing, for substitution of retained counsel for appointed counsel. We have reviewed the record and briefs and conclude that the court did not abuse its discretion by denying the motion. See United States v. Norms, 780 F.2d 1207, 1211 (5th Cir. 1986); see also United States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980).

Davila-Rodriguez also argues, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that his 46-month term of imprisonment exceeds the statutory maximum sentence allowed for the 8 U.S.C. § 1326(a) offense of conviction. He challenges the constitutionality of § 1326(b)'s treatment of felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury.

Davila-Rodriguez's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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, 546 U.S. 919, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005); Rangel-Reyes v. United States, ___ U.S. ___, 126 S.Ct. 2873, 165 L.Ed.2d 910 (2006). Davila-Rodriguez 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.

AFFIRMED.