United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-41441
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO TORRES-LUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-377-ALL
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
Armando Torres-Luna (Torres) appeals his guilty-plea
conviction and the 36-month sentence imposed for being found
illegally present in the United States following deportation. He
argues that the Government breached the plea agreement by failing
to orally recommend that he be sentenced at the low end of his
guideline range. Torres has not shown a breach of the plea
agreement, under plain-error review, given that the Government’s
recommendation was included in his presentence report. See
*
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this opinion should not be published and is not precedent except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. 05-41441
-2-
United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).
Moreover, contrary to Torres’s assertions, the Government’s
failure to concur in his motion for a downward departure did not
constitute an affirmative request for a specific sentence in
contravention of the plea agreement.
Torres also asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are facially
unconstitutional. The constitutional issue raised is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Torres contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
it 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). Torres 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 district court’s judgment is AFFIRMED.