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. 05-41450
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR ANDRES VELASQUEZ-GARAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-324-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Oscar Andres Velasquez-Garay pleaded guilty to having been
found present in the United States following deportation. He
argues on appeal that 8 U.S.C. § 1326(b)’s treatment of prior
felony and aggravated felony convictions as sentencing factors
rather than elements of the offense is unconstitutional.
Velasquez-Garay’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Velasquez-Garay contends that Almendarez-Torres was
*
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this opinion should not be published and is not precedent except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. 05-41450
-2-
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). Velasquez-Garay 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.