United States v. Flores-Zamudio

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 12, 2006 Charles R. Fulbruge III Clerk No. 05-40399 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICTOR MANUEL FLORES-ZAMUDIO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2111-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Victor Manuel Flores-Zamudio appeals from his conviction and sentence for illegal reentry following deportation, pursuant to 8 U.S.C. § 1326. Flores-Zamudio argues for the first time on appeal that his Texas state conviction for burglary of a habitation did not constitute a “crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). He correctly concedes that his argument is foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398

No. 05-40399 -2- (2006), but he raises the argument to preserve it for further review. He also argues that Garcia-Mendez was incorrectly decided. We do not disturb our holding in Garcia-Mendez. See United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991) (one panel of this court may not overrule another panel).

Flores-Zamudio also challenges the constitutionality of § 1326(b). His constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Flores-Zamudio contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Flores-Zamudio 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.