United States v. Cantu-Ruelas , 203 F. App'x 670 ( 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. 05-41631
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO CANTU-RUELAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-168-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Sergio Cantu-Ruelas (Cantu) appeals his sentence following
his guilty-plea conviction of illegally reentering the United
States after having been deported, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). Cantu contends that the district court
erred in treating his prior Texas conviction of burglary of a
habitation as a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). As he concedes, this argument is
foreclosed. See United States v. Valdez-Maltos, 443 F.3d 910,
*
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this opinion should not be published and is not precedent except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. 05-41631
-2-
911 (5th Cir. 2006), cert. denied, 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).
Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Cantu
challenges the constitutionality of § 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 Cantu 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). Cantu 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.