United States v. Almanzan

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40131
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO GARCIA ALMANZAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-742-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Ricardo Garcia Almanzan appeals his guilty-plea conviction
of being an alien unlawfully found in the United States after
deportation, having previously been convicted of an aggravated
felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b).
Almanzan argues that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
He concedes that this issue is foreclosed but seeks to preserve
review by the Supreme Court.

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No. 05-40131
-2-
Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), held that a prior conviction is a sentencing factor under
8 U.S.C. § 1326(b)(2) and not a separate criminal offense.
Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000), did not
overrule Almendarez-Torres. See United States v. Rivera, 265
F.3d 310, 312 (5th Cir. 2001). This argument is foreclosed.
Rivera, 265 F.3d at 312.
The judgment of the district court is AFFIRMED.

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