United States v. Garcia-Garcia , 229 F. App'x 279 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-41186
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO GARCIA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-221-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Fernando Garcia-Garcia (Garcia) appeals the 36-month
sentence he received following his guilty-plea conviction for
illegal reentry after deportation following a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326. Garcia
argues that the provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional, but this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although
Garcia contends that a majority of the Supreme Court would
overrule Almendarez-Torres in light of Apprendi v. New Jersey,
*
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this opinion should not be published and is not precedent except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. 06-41186
-2-
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). Garcia properly concedes
that his argument is foreclosed in light of Almendarez-Torres and
circuit precedent, but raises it to preserve it for further
review.
Garcia argues that the district court erred by
characterizing his prior state felony convictions for possession
of a controlled substance as “aggravated felonies” for purposes
of U.S.S.G. § 2L1.2(b)(1)(C), thereby enhancing his sentence by
eight-levels. Garcia has filed an unopposed motion to remand his
case for resentencing in light of the Supreme Court’s opinion in
Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006). The motion is
GRANTED. See United States v. Estrada-Mendoza, 475 F.3d 258, 261
(5th Cir. 2007). Garcia’s conviction is AFFIRMED, the sentence
is VACATED and the case is REMANDED for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.