United States v. Tellez-Morales , 224 F. App'x 452 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 18, 2007
Charles R. Fulbruge III
Clerk
No. 05-40740
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASSIEL TELLEZ-MORALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-880
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Jassiel Tellez-Morales appeals following his guilty plea
conviction for illegal reentry after previous deportation.
Tellez-Morales contends that the district court erred in treating
his Texas burglary of a habitation conviction as a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). As Tellez-Morales
concedes, his argument has been rejected by this court. See
United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.),
cert. denied, 127 S. Ct. 265 (2006); United States v. Garcia-
*
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this opinion should not be published and is not precedent except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. 05-40740
-2-
Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert. denied,
126 S. Ct. 1398 (2006).
Tellez-Morales also challenges, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), the constitutionality of 8 U.S.C.
§ 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 (1998).
Although Tellez-Morales 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). Tellez-Morales 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.