United States v. Silva-Arambula

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 14, 2007

Charles R. Fulbruge III
Clerk
No. 05-41505
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL SILVA-ARAMBULA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-680-ALL
--------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Manuel Silva-Arambula (Silva) appeals his guilty-plea

conviction and sentence for being an alien found unlawfully in

the United States after deportation and after having been

convicted of an aggravated felony. Silva argues that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional.

Silva’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Silva contends that Almendarez-Torres was incorrectly

*
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this opinion should not be published and is not precedent except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. 05-41505
-2-

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). Silva 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.