USA v. Lanza-Paz

Filing 920061025

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 25, 2006 Charles R. Fulbruge III Clerk No. 05-21045 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ERLIN ROLANDO LANZA-PAZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-479 -------------------Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Erlin Rolando Lanza-Paz (Lanza) appeals following his guilty plea conviction for illegal reentry after deportation. Lanza

argues that the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Lanza's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Lanza contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-21045 -2Almendarez-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, Lanza

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

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.