USA v. Elizalde-Sanchez

Filing 920060223

Opinion

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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006 Charles R. Fulbruge III Clerk No. 05-40070 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFONSO ELIZALDE-SANCHEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-674-1 -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Alfonso Elizalde-Sanchez (Elizalde) appeals his sentence for being present in the United States after having been deported following a felony conviction. For the first time on appeal, Elizalde asserts that the district court's belief during sentencing that the Federal Sentencing Guidelines were mandatory, rather than advisory, is reversible error under United States v. Booker, 543 U.S. 220 (2005). In his plea agreement, Elizalde waived his right to appeal his sentence, and this waiver encompasses his Booker claim. * See United States v. Burns, 433 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40070 -2F.3d 442, 446-50 (5th Cir. 2005); United States v. Bond, 414 F.3d 542, 545-46 (5th Cir. 2005); United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir. 2005). therefore dismissed. Elizalde asserts that the "felony" and "aggravated felony" provisions of 8 U.S.C. 1326(b) are unconstitutional. Elizalde's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Elizalde 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 This portion of the appeal is v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Elizalde 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 IN PART; DISMISSED IN PART.

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