United States v. Angel-Leonardo

* 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this opinion should not be published and is not precedent except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. 05-40410
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ANGEL-LEONARDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-853-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jorge Angel-Leonardo appeals his conviction and sentence for
being found unlawfully present in the United States following
deportation and after being convicted of an aggravated felony.
Angel-Leonardo was sentenced to a term of imprisonment of 27
months to be followed by a three-year term of supervised release.
Angel-Leonardo argues that the enhancement provisions in
8 U.S.C. § 1326(b), which provides for increased sentences based
on prior convictions, are unconstitutional in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000). He contends that his

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conviction should be reduced to the lesser included offense in
§ 1326(a)(2) and that his sentence should be reduced to no more
than two years of imprisonment.
Angel-Leonardo’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Although Angel-Leonardo 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). Angel-Leonardo 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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