United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2007
Charles R. Fulbruge III
Clerk
No. 06-41146
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO TULIO CHAVEZ-CASTRO,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-86-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Marco Tulio Chavez-Castro appeals from his guilty-plea
conviction and sentence for illegal reentry. Chavez-Castro
argues that his two prior Texas sentences for indecency with a
child should have been considered “related cases” pursuant to
U.S.S.G. § 4A1.2(a)(2). His prior Texas convictions involved
joint hearings for rearraignment and sentencing, and he was
sentenced to concurrent terms of imprisonment for those
convictions. However, the convictions also had separate docket
numbers, separate indictments, different victims, separate
*
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this opinion should not be published and is not precedent except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. 06-41146
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sentences, and separate judgments. Accordingly, the district
court did not err in determining that Chavez-Castro’s prior Texas
sentences were not related for guidelines purposes. See United
States v. Moreno-Arredondo, 255 F.3d 198, 203 n.10 (5th Cir.
2001); United States v. Velazquez-Overa, 100 F.3d 418, 423-24
(5th Cir. 1996).
Chavez-Castro also argues, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that the 87-month term of
imprisonment imposed in his case exceeds the statutory maximum
sentence allowed for the 8 U.S.C. § 1326(a) offense charged in
his indictment. He challenges the constitutionality of
§ 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.
Chavez-Castro’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-
Castro 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.
No. 06-41146
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AFFIRMED.