United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 05-41754
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
FABIAN CASTILLO-RAMIREZ
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1291-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Fabian Castillo-Ramirez (Castillo) appeals his guilty-plea
conviction and sentence for being found unlawfully in the United
States following removal. Castillo argues that the district
court misapplied the Sentencing Guidelines by characterizing his
state felony conviction for possession of a controlled substance
as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).
Because Castillo has completed the confinement portion of
his sentence, any argument that the term of incarceration should
be reduced is moot, and the only portion of the sentence
*
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this opinion should not be published and is not precedent except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. 05-41754
-2-
remaining for consideration is his term of supervised release.
Castillo, however, has been removed from the United States.
Because Castillo is barred from returning to the United States,
and there is no indication that he has waived his right to be
present for resentencing, Castillo’s challenge to the validity of
his sentence is moot. See United States v. Rosenbaum-Alanis,
483 F.3d 381, 2007 WL 926832 at *2 (5th Cir. 2007). Therefore,
the appeal is DISMISSED as to Castillo’s sentence.
For the first time on appeal, Castillo also challenges the
constitutionality of 8 U.S.C. § 1326(b) in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Castillo’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Castillo 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). Castillo 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. Accordingly, Castillo’s conviction is AFFIRMED.