U.S. Court of Appeals for the Fifth Circuit, 2006

United States v. Garcia-Hernandez

United States v. Garcia-Hernandez
U.S. Court of Appeals for the Fifth Circuit · Decided November 8, 2006 · Jolly, Demoss, Stewart
203 F. App'x 673

United States v. Garcia-Hernandez

Opinion

PER CURIAM: *

*674 Salvador Perez-Cuevas (Perez) appeals from his guilty-plea conviction and sentence for being found in the United States after previous deportation. See 8 U.S.C. § 1326. Perez argues that the district court erred by imposing a 16-level adjustment under U.S.S.G. § 2L1.2(b)(l)(A)(ii) based upon his Texas conviction for burglary of a habitation. As Perez concedes, his argument is foreclosed. See United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir. 2006), cert. denied, 2006 WL 2094539 (U.S. Oct.2, 2006) (No. 06-5473); United States v. Garcia-Mendez, 420 F.3d 454, 455-57 (5th Cir. 2005), cert. denied, — U.S. -, 126 S.Ct. 1398, 164 L.Ed.2d 100 (2006).

Perez also challenges, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than as elements of the offense that must be found by a jury. 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). Although Perez 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, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Perez 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.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *674 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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