United States v. Maldonado-Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2007
Charles R. Fulbruge III
Clerk
No. 06-40105
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICHOLAS MALDONADO-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-642-ALL
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Nicholas Maldonado-Garcia (Maldonado) appeals his guilty
plea conviction and sentence for illegal reentry following
deportation. Maldonado 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 Maldonado
concedes, his argument has been rejected by this court. See
United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.),
cert. denied, 127 S. Ct. 265 (2006); United States v.
*
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this opinion should not be published and is not precedent except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. 06-40105
-2-
Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005),
cert. denied, 126 S. Ct. 1398 (2006).
Maldonado 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 Maldonado 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). Maldonado
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.