United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 3, 2007
Charles R. Fulbruge III
Clerk
No. 06-50084
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JIAMON ZELAYA-PARADA, also known as Jose Jaime
Zelaya-Parada, also known as Jose Jaime Zelaya, also known
as Jose Jaime Parada
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-1713-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Zelaya-Parada 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.
Zelaya-Parada argues, in light of Apprendi v. New Jersey, 530
U.S. 466 (2000), that the 31-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
*
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this opinion should not be published and is not precedent except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. 06-50084
-2-
and aggravated felony convictions as sentencing factors rather
than elements of the offense that must be found by a jury.
Zelaya-Parada’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).
Zelaya-Parada 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.
Zelaya-Parada also argues that his guilty plea is not valid
because (1) the district court failed to give him full and
correct information regarding the maximum statutory penalty that
he would face for the offense and (2) the factual basis for his
plea was insufficient to establish that he was “found in” the
United States. Zelaya-Parada’s first argument is premised on the
unconstitutionality of § 1326. However, the Supreme Court has
held that § 1326 is constitutional. Almendarez-Torres, 523 U.S.
at 246. As to the second argument, Zelaya-Parada has not shown
plain error. See United States v. Vonn, 535 U.S. 55, 1054-55
2002; United States v. Pacheco-Medina, 212 F.3d 1162, 1163-64
(9th Cir. 2000).
As the Government seeks to enforce Zelaya-Parada's waiver of
sentencing issues and the waiver is valid, we do not address
No. 06-50084
-3-
those issues. See United States v. Story, 439 F.3d 226, 230-31
(5th Cir. 2006).
AFFIRMED.