United States v. Valdivia-Cardona

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. 05-41002
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS VALDIVIA-CARDONA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-396-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Juan Carlos Valdivia-Cardona (Valdivia) 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 46-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
*
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this opinion should not be published and is not precedent except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. 05-41002
-2-
sentencing factors rather than elements of the offense that must
be found by a jury.
Valdivia’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). Valdivia
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.