USA v. Quiroz-Garza

Filing 920060825

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 25, 2006 Charles R. Fulbruge III Clerk No. 05-41517 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAVIER QUIROZ-GARZA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-252-ALL -------------------Before DAVIS, SMITH, and WIENER, Circuit Judges. PER CURIAM:* Javier Quiroz-Garza appeals his guilty-plea conviction and sentence for being present in the United States following deportation in violation of 8 U.S.C. § 1326. He challenges the

constitutionality of § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than as elements of the offense that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Quiroz-Garza's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41517 -2Although Quiroz-Garza contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-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, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Quiroz-Garza 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.