United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 1, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41359
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
ANTONIO LOPEZ,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-468-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Antonio Lopez appeals his guilty-plea conviction and sentence for being an alien found
illegally in the United States after a prior deportation. He asserts that the district court erred in
imposing a 16-level enhancement to his base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
because his prior Texas conviction for burglary of a habitation did not constitute a “crime of
violence.” The district court correctly found that Lopez’s prior conviction for burglary of a habitation
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
was a conviction for a crime of violence under § 2L1.2(b)(1)(A)(ii). See United States v. Garcia-
Mendez, 420 F.3d 454, 457 (5th Cir. 2005), cert. denied, ___ S. Ct. ___, 2006 WL 386884 (Feb. 21,
2006)(No. 05-8542).
For the first time on appeal, Lopez 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). We review Lopez’s Booker-based challenge for plain
error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th. Cir.), cert. denied, 126 S.
Ct. 267 (2005). Lopez has failed to establish that the error affected his substantial rights. See 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.
Lopez also asserts that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional. This constitutional challenge to § 1326 is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Lopez 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). Lopez 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.
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