United States v. Soto-Garcia

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. 05-41009
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO SOTO-GARCIA,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-199-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Alberto Soto-Garcia appeals his guilty plea conviction for

unlawful reentry in violation of 8 U.S.C. § 1326(b). In his sole

issue on appeal, Soto-Garcia argues that § 1326(b)’s treatment of

prior felony and aggravated felony convictions as sentencing

factors rather than elements of the offense that must be found by

a jury is unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 466 (2000).

*
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this opinion should not be published and is not precedent except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. 05-41009
-2-

We need not resolve the disputed issue whether Soto-Garcia’s

appeal waiver precludes his current challenge to § 1326(b),

because his constitutional argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998). Although

Soto-Garcia 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). Soto-Garcia

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.