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. 05-40070
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO ELIZALDE-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-674-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alfonso Elizalde-Sanchez (Elizalde) appeals his sentence for
being present in the United States after having been deported
following a felony conviction. For the first time on appeal,
Elizalde asserts that the district court’s belief during
sentencing that the Federal Sentencing Guidelines were mandatory,
rather than advisory, is reversible error under United States v.
Booker, 543 U.S. 220 (2005). In his plea agreement, Elizalde
waived his right to appeal his sentence, and this waiver
encompasses his Booker claim. See United States v. Burns, 433
*
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this opinion should not be published and is not precedent except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. 05-40070
-2-
F.3d 442, 446-50 (5th Cir. 2005); United States v. Bond, 414 F.3d
542, 545-46 (5th Cir. 2005); United States v. McKinney, 406 F.3d
744, 746-47 (5th Cir. 2005). This portion of the appeal is
therefore dismissed.
Elizalde asserts that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Elizalde’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Elizalde 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). Elizalde 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 IN PART; DISMISSED IN PART.