United States v. Franco-Villagran

* 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this opinion should not be published and is not precedent except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
June 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41155
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS FRANCO-VILLAGRAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-293-ALL
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Carlos Franco-Villagran (Franco) appeals his sentence
for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b).
Franco challenges the constitutionality of § 1326(b)’s treatment
of prior felony and aggravated felony convictions as sentencing
factors rather than elements of the offense that must be found by
a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
The Government argues that the waiver provision in Franco’s plea
agreement precludes his attack on the constitutionality of

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No. 05-41155
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§ 1326(b) and that, as a result of the waiver, Franco lacks
standing to challenge the constitutionality of § 1326(b). We
assume, arguendo only, that the waiver does not bar the instant
appeal.
Franco’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Franco 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). Franco
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.

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