United States v. Castillo-Hernandez

PER CURIAM: * Isidro Castillo-Hernandez (“Castillo”) appeals his conviction and sentence for illegal reentry subsequent to deportation. 8 U.S.C. § 1326(b). He argues that the district court abused its discretion in excluding from the evidence at trial the clothing he was wearing at the time of arrest. He contends it would have cast doubt upon the testimony of the Government’s key witness, Border Patrol Agent Mesa, who testified that Castillo’s clothes were wet and muddy when he was found near the Rio Grande River. Although it is debatable whether the district court abused its discretion in excluding the clothing, see e.g., United States v. Colatriano, 624 F.2d 686, 689 (5th Cir. 1980), the error was harmless. Whether the clothes were still wet or muddy would *363 not necessarily have had an impact on Agent Mesa’s credibility, as Officer Legaretta’s testimony indicated that Castillo may have been allowed to clean up or change into clean clothes after his arrest, thus clouding whether the clothes inventoried at the prison were the ones Castillo was wearing when Agent Mesa arrested him. Moreover, the evidence showed that Castillo was discovered 100 yards north of the border, that he admitted he was not a United States citizen, that he did not have permission to be in this country, and that he had been previously deported. In light of the overwhelming and unrebutted evidence of Castillo’s guilt, the district court’s exclusion of the clothing was harmless. See United States v. Haese, 162 F.3d 359, 364 (5th Cir.1998). Castillo argues that under the reasoning of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the sentencing provision of 8 U.S.C. § 1326(b)(2) is unconstitutional. Castillo concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he raises it to preserve it for possible Supreme Court review. Apprendi did not overrule AlmendarezTorres. See Apprendi 530 U.S. at 489-90, 120 S.Ct. 2348; see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). This Court must therefore follow the precedent set in Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation and citation omitted). AFFIRMED. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.