United States v. Garcia-Gallegos , 169 F. App'x 213 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40381
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN GARCIA-GALLEGOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-613-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Martin Garcia-Gallegos pleaded guilty to illegal reentry in
violation of 8 U.S.C. § 1326. He appeals his 57-month sentence,
arguing that the “felony” and “aggravated felony” provisions of 8
U.S.C. § 1326(b) are unconstitutional.
Garcia-Gallegos’s constitutional challenge to 8 U.S.C.
§ 1326 is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Garcia-Gallegos contends that
Almendarez-Torres was incorrectly decided and that a majority of
*
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this opinion should not be published and is not precedent except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.
No. 05-40381
-2-
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). Garcia-
Gallegos 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.