
    UNITED STATES of America, Plaintiff-Appellee v. Victor AGUILERA-AYALA, also known as Manuel A. Agurlar, Defendant-Appellant.
    No. 07-51264
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Sept. 11, 2008.
    Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Eduardo Solis, Law Offices of Eduardo Solis, El Paso, TX, for Defendant-Appellant.
    Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
   PER CURIAM:

Victor Aguilera-Ayala (Aguilera) appeals the 38-month sentence imposed following his guilty plea conviction for illegal reentry following a previous deportation. Aguilera argues that the district court erred in applying an eight-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(l)(C), for an aggravated felony. He argues that the Government did not establish by competent evidence “the fact” of his prior convictions. Specifically, he asserts that, in light of Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) and United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005), the California abstract of judgments utilized by the district court are considered “unreliable” to establish the existence of his prior convictions.

Aguilera’s reliance on Gutierrez-Ramirez is misplaced. In Gutierrez-Ramirez, 405 F.3d at 358-59, this court determined that the district court erred under Taylor and Shepard, when it “exclusively” relied on a California abstract of judgment to determine whether the defendant’s pri- or conviction qualified as a “drug trafficking offense” for purposes of a 16-level enhancement under § 2L1.2(b)(l)(A)(i). As Aguilera acknowledges in his brief, his argument does not implicate Taylor or Shepard because he is only challenging the existence of his prior convictions. See United States v. Neri-Hernandes, 504 F.3d 587, 590-92 (5th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 1106, 169 L.Ed.2d 838 (2008). Because Aguilera failed to produce any evidence calling into question the reliability of the abstract of judgments, the district court did not err in using them to establish Aguilera’s prior convictions. See id. at 592.

In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Aguilera challenges the constitutionality of § 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 Al-mendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008).

Accordingly, the judgment of the district court is AFFIRMED. 
      
       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.
     