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

                                                                   FILED
                                                                 October 21, 2008
                                 No. 08-50172
                              Conference Calendar            Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ENRIQUE SERNA-TORRES

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2572-ALL


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
      Enrique Serna-Torres appeals his guilty plea conviction and sentence for
illegal reentry following deportation in violation of 8 U.S.C. § 1326. He contends
that the district court erred when it enhanced his sentence pursuant to
§ 1326(b)(1) and U.S.S.G. § 2L1.2(b)(1)(D) because the Government failed to
establish beyond a reasonable doubt that he had a prior felony conviction. The
Government has filed a motion for summary affirmance or, alternatively, for an
extension of time in which to file a brief on the merits.

      *
      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should not be published and is not precedent except under the limited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. 08-50172

      To the extent Serna-Torres argues that his prior felony conviction must
have been pleaded in the indictment and proved beyond a reasonable doubt, his
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007),
cert. denied, 128 S. Ct. 872 (2008).
      To the extent Serna-Torres argues that the Government failed to establish
a sufficient evidentiary basis for the sentencing enhancement, he has failed to
show plain error. See United States v. Olano, 507 U.S. 725, 732 (1993). The
presentence report (PSR) provided that Serna-Torres was removed to Mexico on
July 20, 2004, subsequent to his conviction on September 21, 2001, for the felony
offense of illegal reentry. The PSR also provided that the § 2L1.2(b)(1)(D)
enhancement was based on this prior felony conviction. At sentencing, Serna-
Torres agreed with the guideline calculation set forth in the PSR, and the
district court adopted the PSR without change. Therefore, the Government
proved by a preponderance of the evidence that Serna-Torres’s prior removal was
subsequent to his felony conviction for illegal reentry, and the district court did
not err when it enhanced his sentence pursuant to § 1326(b)(1) and
§ 2L1.2(b)(1)(D). See United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
      Accordingly,   the   district    court’s   judgment   is   AFFIRMED,     the
Government’s motion for summary affirmance is GRANTED, and the
Government’s motion for an extension of time is DENIED.




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