United States v. Espiricueta-Casanova

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. 06-40244
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENITO ESPIRICUETA-CASANOVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-761
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Benito Espiricueta-Casanova appeals 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. He argues, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 33-month term of imprisonment
imposed in his case 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
*
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this opinion should not be published and is not precedent except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. 06-40244
-2-
factors rather than elements of the offense that must be found by
a jury.
Espiricueta-Casanova’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.), cert. denied, 126 S.
Ct. 298 (2005). Espiricueta-Casanova 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.