United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50875
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RUBEN JIMENEZ-SILVESTRE, also known as Juan De La Vellano
Defendant-Appellant
------------------------------
consolidated with
No. 06-50883
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN DE LA VELLANO, also known as Ruben Jimenez-Silvestre
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:06-CR-217-ALL
USDC No. 2:05-CR-638-ALL
No. 06-50875
c/w No. 06-50883
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ruben Jimenez-Silvestre, who is also known as Juan De La Vellano,
appeals following 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 and the concomitant revocation of his supervised release. He
argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the three-
year term of supervised release imposed in relation to his new conviction 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 aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
Jimenez-Silvestre’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.
2005); Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United States v.
Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007.
Jimenez-Silvestre 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.
Jimenez-Silvestre’s appeal of his revocation of supervised release was
consolidated with the instant appeal. He has not, however, raised any argument
*
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.
2
No. 06-50875
c/w No. 06-50883
with respect to these proceedings. Any such claim is thus deemed abandoned.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The Government’s motion for summary affirmance is GRANTED, the
Government’s motion for an extension of time to file a brief is DENIED, and the
judgments of the district court are AFFIRMED.
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