United States v. Garcia-Garcia , 195 F. App'x 264 ( 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. 05-50534
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL GARCIA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-852-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Raul Garcia-Garcia (Garcia) pleaded guilty to illegal
reentry and was sentenced to 41 months of imprisonment, three
years of supervised release, and a $100 special assessment.
Garcia appeals his sentence, arguing that the district court
mistakenly believed that the Sentencing Guidelines were mandatory
when it sentenced him. In addition, Garcia argues that his
sentence is unreasonable and that the enhancement provisions of 8
*
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this opinion should not be published and is not precedent except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. 05-50534
-2-
U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000).
The record belies Garcia’s contention that the district
court sentenced him believing that the Guidelines were still
mandatory. At sentencing, the district court stated that it knew
that it was not bound by the Guidelines. Furthermore, there is
no indication that the sentence the district court imposed, which
was at the low end of the guidelines range of imprisonment, was
unreasonable. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006).
Garcia’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Garcia 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). Garcia
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.