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. 05-20959
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS ALEXIA LANZA-GUILLEN,
also known as Dennis Lanza,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-83-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Dennis Alexia Lanza-Guillen appeals his guilty-plea
conviction and 57-month sentence for violating 8 U.S.C. § 1326(a)
and (b)(2) by being found in the United States without
permission, following deportation. Lanza-Guillen challenges as
unconstitutional § 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.
*
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this opinion should not be published and is not precedent except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. 05-20959
-2-
Lanza-Guillen’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Lanza-Guillen contends that Almendarez-Torres was
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). Lanza-Guillen 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.