203 F. App'x 652

UNITED STATES of America, Plaintiff-Appellee, v. Efer Eliud CAVAZOS-SOTO, Defendant-Appellant.

No. 06-40343.

Conference Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 25, 2006.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, For Plaintiff-Appellee.

Marjorie A Meyers, Federal Public Defender, Federal Public Defender’s Office Southern District of Texas, Houston, TX, For Defendant-Appellant.

*653Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM: *

Efer Eliud Cavazos-Soto (Cavazos) appeals his guilty-plea conviction and sentence for being present in the United States following deportation in violation of 8 U.S.C. § 1826. He challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than as elements of the offense that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Cavazos’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Cavazos 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, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Cavazos 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.

United States v. Cavazos-Soto
203 F. App'x 652

Case Details

Name
United States v. Cavazos-Soto
Decision Date
Oct 25, 2006
Citations

203 F. App'x 652

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!