USA v. Solis-Alvarez

Filing 920060223

Opinion

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. 05-40767 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARCO ANTONIO SOLIS-ALVAREZ, also known as Marco Antonio Solis-Garza, also known as Marco Antonio Soliz-Garza, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2019-ALL -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Marco Antonio Solis-Alvarez (Solis) pleaded guilty and was convicted of attempted illegal reentry after deportation. sentenced to 33 months of imprisonment and three years of supervised release. Solis contends that the district court erred He was

by characterizing his state felony conviction for possession of a controlled substance as an "aggravated felony" for purposes of U.S.S.G. § 2L1.2. Relief on this issue is precluded. See United

States v. Caicedo-Cuero, 312 F.3d 697, 700-06 (5th Cir. 2002); 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40767 -2United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Solis also asserts that the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b) are unconstitutional. Solis'

constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Solis 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). Solis 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. Accordingly, the judgment of the district court is AFFIRMED.