United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-41157
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR ALEJANDRO VENEGAS-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-70-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Edgar Alejandro Venegas-Castillo (Venegas) appeals the
conviction and sentence resulting from his plea of guilty to
illegally reentering the United States following deportation.
See 8 U.S.C. § 1326.
Venegas originally contended that the district court erred
by refusing to count three prior convictions as related
convictions for purposes of calculating his criminal history.
However, Venegas now concedes that at least two of the
*
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this opinion should not be published and is not precedent except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. 05-41157
-2-
convictions were not related under the Sentencing Guidelines
because they were separated by an intervening arrest. See
U.S.S.G. § 4A1.2(a)(2) & comment. (n.3) (Nov. 2004). He also
concedes that any remaining error in his criminal history score
would be harmless. No relief is warranted regarding Venegas’s
criminal history.
Venegas also contends 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). Venegas’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Venegas 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). Venegas
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
AFFIRMED.