United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 3, 2006
Charles R. Fulbruge III
Clerk
No. 06-50029
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VERASTEGUI,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-139-ALL
--------------------
Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Verastegui appeals from his guilty-plea convictions and
sentences for being a felon in possession of a firearm and
unlawful reentry of a deported alien. He argues that his
sentences were unreasonable because they exceeded the advisory
guideline range, they were based upon improper departure factors,
they were greater than necessary to meet the sentencing goals of
18 U.S.C. § 3553(a)(2), and they were based upon a guideline
calculation error.
*
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this opinion should not be published and is not precedent except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. 06-50029
-2-
Although the advisory guideline range was 63 to 78 months of
imprisonment, the district court utilized an upward departure and
a variance to sentence Verastegui to concurrent terms of 120
months of imprisonment. The district court held that the upward
departure was warranted pursuant to U.S.S.G. § 4A1.3 because
Verastegui’s criminal history category did not adequately
describe his criminal conduct. The court also held that a
variance was warranted in order to meet the factors set forth in
18 U.S.C. § 3553(a)(1) and (2), thereby necessitating a non-
Guideline sentence. Verastegui has failed to show that the
district court abused its discretion by departing upwardly or
that his non-Guideline sentence was unreasonable. See United
States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006);
United States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006).
Moreover, as conceded by Verastegui, his challenge to the
adjustment set forth in U.S.S.G. § 2L1.2(b)(1)(C) is foreclosed
by this court’s holding in United States v. Hinojosa-Lopez, 130
F.3d 691, 693-94 (5th Cir. 1997). He raises this issue in order
to preserve it in light of the Supreme Court’s grant of
certiorari regarding this issue in United States v. Toledo-
Flores, 149 F. App’x 241 (5th Cir. 2005), cert. granted, 126 S.
Ct. 1652 (2006).
Verastegui argues that 18 U.S.C. § 922(g) is facially
unconstitutional and unconstitutional as applied because the
Government failed to establish the interstate commerce element.
No. 06-50029
-3-
Verastegui concedes that his constitutional challenge is
foreclosed by circuit precedent, and he raises it only to
preserve it for review by the Supreme Court. See United States
v. Guidry, 406 F.3d 314, 318-19 (5th Cir.), cert. denied, 126 S.
Ct. 190 (2005); United States v. Daugherty, 264 F.3d 513, 318
(5th Cir. 2001); United States v. Rawls, 85 F.3d 240, 242-43 (5th
Cir. 1996).
Verastegui also challenges the constitutionality of 8 U.S.C.
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Verastegui 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). Verastegui properly
concedes that his argument is foreclosed by Almendarez-Torres and
circuit precedent, but he raises it here solely to preserve it
for further review.
AFFIRMED.