United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-41272
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO SANCHEZ-RIVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-341-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Gustavo Sanchez-Rivera pleaded guilty to one charge of
attempted illegal reentry into the United States and was
sentenced to serve 70 months in prison and a three-year term of
supervised release. Sanchez-Rivera argues that the district
court erred by concluding that his prior conviction for burglary
of a habitation constituted a crime of violence and by assessing
a 16-level adjustment for this conviction. This argument is, as
Sanchez-Rivera concedes, foreclosed. See United States v.
Valdez-Maltos, 443 F.3d 910, 911 (5th Cir. 2006), cert. denied,
*
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this opinion should not be published and is not precedent except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. 05-41272
-2-
2006 WL 2094539 (U.S. Oct. 2, 2006) (No. 06-5473); United States
v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1398 (2006).
Sanchez-Rivera also challenges the constitutionality of
8 U.S.C. § 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 in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Sanchez-Rivera’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Sanchez-Rivera 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). Sanchez-
Rivera 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.
Sanchez-Rivera has shown no error in connection with his
conviction or sentence. Accordingly, the judgment of the
district court is AFFIRMED.