United States v. Espina-Moscoso

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 24, 2006 Charles R. Fulbruge III Clerk No. 05-40732 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELMER DAVID ESPINA-MOSCOSO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-13-ALL -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Elmer David Espina-Moscoso (Espina) pleaded guilty to one count of reentering the United States without permission after having been deported. Because Espina’s prior deportation followed an aggravated-felony conviction, he was subject to the increased-penalty provisions of 8 U.S.C. § 1326(b). Espina contends that the treatment of felonies and aggravated felonies as sentencing factors under § 1326(b)(1) and (2) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

No. 05-40732 -2- (2000), and that he should be resentenced subject to the two- year maximum set forth in § 1326(a).

Espina’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Espina contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi, we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Espina properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

AFFIRMED.