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. 04-41425
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO SALAS-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-580-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Gerardo Salas-Lopez (Salas) appeals his sentence for being
present in the United States after having been deported. Salas
argues for the first time on appeal that the district court erred
in imposing a sentence under a mandatory guidelines regime, in
violation of United States v. Booker, 543 U.S. 220 (2005). He
also argues that the “felony” and “aggravated felony” provisions
of 8 U.S.C. § 1326(b) are unconstitutional.
We review Salas’s Booker-based challenge for plain error.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th.
*
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this opinion should not be published and is not precedent except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. 04-41425
-2-
Cir.), cert. denied, 126 S. Ct. 267 (2005). Salas has failed to
establish that the error affected his substantial rights.
See United States v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th
Cir.), cert. denied, 126 S. Ct. 464 (2005); United States v.
Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert. denied, 126
S. Ct. 264 (2005). Therefore, he cannot demonstrate plain error.
Salas’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Salas 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). Salas 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 judgment of the district court is thus AFFIRMED.