USA v. Garcia-Gallegos

Filing 920060223

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
February 23, 2006 Charles R. Fulbruge III Clerk

No. 05-40381 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARTIN GARCIA-GALLEGOS, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-613-ALL -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Martin Garcia-Gallegos pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. He appeals his 57-month sentence,

arguing that the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b) are unconstitutional. Garcia-Gallegos's constitutional challenge to 8 U.S.C. § 1326 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Garcia-Gallegos contends that

Almendarez-Torres was incorrectly decided and that a majority of

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40381 -2the 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, Garcia-

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

Gallegos 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.