United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40658
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABINO GALVAN-PENA, also known as Jesus Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1115-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gabino Galvan-Pena (Galvan) challenges his guilty-plea
conviction and sentence for illegal reentry following
deportation, in violation of 8 U.S.C. § 1326. Galvan’s argument
that his prior burglary conviction in Texas does not qualify
as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is
foreclosed. See United States v. Garcia-Mendez, 420 F.3d 454,
456-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006).
*
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this opinion should not be published and is not precedent except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. 05-40658
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Galvan’s argument that this court did not properly apply the
categorical analysis of Taylor v. United States, 495 U.S. 575
(1990), is tantamount to arguing that Garcia-Mendez was wrongly
decided. Garcia-Mendez resolved the issue raised in this case;
one panel of this court may not ignore the precedent set by a
prior panel. United States v. Ruiz, 180 F.3d 675, 676 (5th Cir.
1999). Because Galvan’s conviction for burglary of a habitation
was a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) and
provided a basis for the district court’s 16-level enhancement of
his offense level, this court need not address whether his prior
robbery conviction in Texas was also a crime of violence under
§ 2L1.2(b)(1)(A)(ii).
Galvan also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Galvan contends that Almendarez-Torres was incorrectly
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). Galvan
properly concedes that his argument is foreclosed in light of
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Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
AFFIRMED.