United States v. Macias-Leon

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. 05-41082 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LORENZO MACIAS-LEON, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-116-1 -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Lorenzo Macias-Leon (Macias) appeals the 27-month sentence he received following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. He asserts that the “felony” and “aggravated felony” provisions of § 1326(b) are facially unconstitutional. The constitutional issue raised by Macias is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Macias contends that Almendarez-Torres was incorrectly * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41082 -2- 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). Macias 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.