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. 06-40128
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS CHAVEZ-TOVAR,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-481-ALL
--------------------
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jose Luis Chavez-Tovar appeals his guilty-plea conviction
of, and sentence for, violating 8 U.S.C. § 1326 by being found in
the United States without permission after deportation. He
argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000),
that the 37-month term of imprisonment imposed in his case
exceeds the statutory maximum sentence allowed for the § 1326(a)
offense charged in his indictment. He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
*
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this opinion should not be published and is not precedent except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. 06-40128
-2-
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
Chavez-Tovar’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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). Chavez-
Tovar 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.