United States v. Silva-Espinoza

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. 05-40603 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CALIXTO SILVA-ESPINOZA, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04–CR-2089-1 -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Calixto Silva-Espinoza (Silva) appeals his guilty-plea conviction and sentence for illegal reentry following deportation. Silva argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Silva’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Silva 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40603 -2- 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). Silva 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.