United States v. Santellano , 195 F. App'x 266 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-41806
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RAMON SANTELLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-503
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Juan Ramon Santellano appeals his conviction and the 48-
month sentence imposed following entry of his guilty plea to one
count of being found illegally in the U.S. subsequent to removal
and a conviction for an aggravated felony. Santellano contends
that the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b) are unconstitutional. Because the Government does not
seek to enforce Santellano’s appeal waiver, it is not binding.
See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
*
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this opinion should not be published and is not precedent except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. 05-41806
-2-
Santellano’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Santellano contends that Almendarez-Torres was
incorrectly decided and that a majority of 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). Santellano 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.
The judgment of the district court is AFFIRMED.