United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-40399
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR MANUEL FLORES-ZAMUDIO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2111-ALL
--------------------
Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Victor Manuel Flores-Zamudio appeals from his conviction and
sentence for illegal reentry following deportation, pursuant to 8
U.S.C. § 1326. Flores-Zamudio argues for the first time on
appeal that his Texas state conviction for burglary of a
habitation did not constitute a “crime of violence” for purposes
of U.S.S.G. § 2L1.2(b)(1)(A)(ii). He correctly concedes that his
argument is foreclosed by United States v. Garcia-Mendez, 420
F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398
*
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this opinion should not be published and is not precedent except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. 05-40399
-2-
(2006), but he raises the argument to preserve it for further
review. He also argues that Garcia-Mendez was incorrectly
decided. We do not disturb our holding in Garcia-Mendez. See
United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991) (one
panel of this court may not overrule another panel).
Flores-Zamudio also challenges the constitutionality of
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Flores-Zamudio 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). Flores-Zamudio 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.