          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                  April 15, 2008
                                No. 07-40054
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

WELMAN ALVARENGA-HERNANDEZ, also known as Wellman Slvarenga,
also known as Gwelman Alvarenza

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:06-CR-642-1


Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Welman Alvarenga-Hernandez (Alvarenga) appeals his sentence for illegal
reentry following deportation.        Specifically, Alvarenga challenges the
enhancement of his sentence based upon the district court’s determination that
his prior conviction for second degree assault is a crime of violence for purposes
of U.S.S.G. § 2L1.2(b)(1)(C). Because he has been released from prison and




      *
      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should not be published and is not precedent except under the limited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. 07-40054

deported to Mexico, his appeal of his sentence is moot. See United States v.
Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Alvarenga
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1995). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART.




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