                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      November 14, 2005
                                     TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-2047
          v.                                       District of New Mexico
 ADALBERTO MENDOZA-                              (D.C. No. CR-04-1635 JH)
 MARTINEZ,

               Defendant-Appellant.


                            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



      *
         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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
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




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