United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 06-10006
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELEAZAR ESPINOZA-CAPUCHINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-152-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Eleazar Espinoza-Capuchina (Espinoza) appeals his guilty-
plea conviction and sentence of 77 months for illegal reentry
after removal from the United States, in violation of 8 U.S.C.
§ 1326(a), (b)(2) and 6 U.S.C. §§ 202, 557. Espinoza argues that
his sentence is unreasonable and that § 1326(b) is
unconstitutional.
This court reviews a sentence imposed by a district court
for reasonableness. United States v. Duhon, 440 F.3d 711, 714
(5th Cir. 2006). Espinoza contends that the district court
*
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this opinion should not be published and is not precedent except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. 06-10006
-2-
imposed an unreasonable sentence in that it refused to consider
the sentencing disparity between his case and those of defendants
in districts which offer U.S.S.G. § 5K3.1 “early disposition”
programs. This court recently rejected a nearly identical
argument, holding “[t]he refusal to factor in, when sentencing a
defendant, the sentencing disparity caused by early disposition
programs does not render a sentence unreasonable.” United States
v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Espinoza next argues that § 1326(b)’s treatment of prior
aggravated felony convictions as sentencing factors is
unconstitutional. This constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Espinoza 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). Espinoza 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.
The judgment of the district court is AFFIRMED.