United States v. Salgado-Brito

* 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this opinion should not be published and is not precedent except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
February 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40241
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VLADIMIR SALGADO-BRITO, also known as Pablo Alvarez-Gutierrez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-551-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Pursuant to a written agreement, Vladimir Salgado-Brito
pleaded guilty to illegal reentry after removal from the United
States in violation of 8 U.S.C. § 1326(a), (b). He appeals his
conviction and sentence of 33 months of imprisonment.
Salgado-Brito argues for the first time on appeal that the
“felony” and “aggravated felony” provisions of § 1326(b) are
unconstitutional. We need not decide the applicability of the

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No. 05-40241
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waiver in this case because the issue that Salgado-Brito raises
is foreclosed.
Salgado-Brito’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Salgado-Brito contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Salgado-
Brito 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.
Accordingly, the conviction and sentence are AFFIRMED.

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