United States v. Espina-Moscoso , 169 F. App'x 314 ( 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 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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-13-ALL
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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.
*
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this opinion should not be published and is not precedent except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. 05-40732
-2-
466 (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.