United States v. Luna , 203 F. App'x 611 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-20650
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOISES LUNA, also known as Luna Moises, also known as Moses Luna,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-53-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Moises Luna appeals his sentence following his guilty plea
conviction for illegal reentry after previous deportation. Luna
contends that the district court erred in treating his Texas
burglary of a habitation conviction as a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). As Luna concedes, his argument
has been rejected by this court. See United States v. Valdez-
Maltos, 443 F.3d 910, 911 (5th Cir. 2006), cert. denied,
*
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this opinion should not be published and is not precedent except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. 05-20650
-2-
2006 WL 2094539 (U.S. Oct. 2, 2006) (No. 06-5473); United States
v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005),
cert. denied, 126 S. Ct. 1398 (2006).
Luna also challenges, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than as elements of the
offense that must be found by a jury. This issue is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Luna 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). Luna
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.