USA v. Velasquez

Filing 920060224

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 24, 2006 Charles R. Fulbruge III Clerk No. 05-40943 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEOCADIO VELASQUEZ, also known as Leocadio Pecellin, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 2:05-CR-131-ALL -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Leocadio Velasquez appeals his guilty-plea conviction of being found illegally in the United States after having previously been deported. Velasquez argues that the "felony" and

"aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional both on their face and as applied. Velasquez's constitutional challenge is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 235 (1998). Although

Velasquez contends that Almendarez-Torres was incorrectly decided

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40943 -2and 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). Velasquez 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 district court's judgment is AFFIRMED.