United States v. Salinas-Chavez

U.S. Court of Appeals for the Fifth Circuit
United States v. Salinas-Chavez, 209 F. App'x 448 (5th Cir. 2006)
King, Owen, Per Curiam, Wiener

United States v. Salinas-Chavez

Opinion

PER CURIAM: *

Juan Fidencio Salinas-Chavez appeals his guilty-plea conviction for unlawful reentry in violation of 8 U.S.C. § 1326(b). In his sole issue on appeal, Salinas-Chavez argues that § 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 *449 is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Salinas-Chavez’s constitutional challenge to § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Salinas-Chavez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule AlmendarezTorres 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). Salinas-Chavez 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Juan Fidencio SALINAS-CHAVEZ, Defendant-Appellant
Status
Unpublished