United States v. Valdez-Serrato

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2006

Charles R. Fulbruge III
Clerk
No. 05-20785
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO VALDEZ-SERRATO, also known as
Armando Serrato Valdez,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-93-1
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Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Armando Valdez-Serrato appeals his guilty-plea conviction

and 27-month sentence for being found in the United States

unlawfully after deportation following an aggravated felony

conviction. Valdez-Serrato 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).

*
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this opinion should not be published and is not precedent except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. 05-20785
-2-

Valdez-Serrato’s constitutional challenge is foreclosed by

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

Although Valdez-Serrato 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).

Valdez-Serrato 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.