United States v. Rodriguez-Yanez

* 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this opinion should not be published and is not precedent except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
December 14, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40619
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AVELINO RODRIGUEZ-YANEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2107-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Avelino Rodriguez-Yanez appeals his guilty-plea conviction
and sentence for being illegally present in the United States
following removal. Rodriguez argues that the district court
erred by finding that his prior Texas felony conviction for
burglary of a habitation was a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). This court has rejected that argument in
our recent decision in United States v. Garcia-Mendez, 420 F.3d
454, 456-57 (5th Cir. 2005).

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No. 05-40619
-2-
Rodriguez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez 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). Rodriguez 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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