United States v. Flores-Zamudio

176 F. App'x 495

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 12, 2006

Charles R. Fulbruge III Clerk No. 05-40399 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR MANUEL FLORES-ZAMUDIO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2111-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Victor Manuel Flores-Zamudio appeals from his conviction and

sentence for illegal reentry following deportation, pursuant to 8

U.S.C. § 1326. Flores-Zamudio argues for the first time on

appeal that his Texas state conviction for burglary of a

habitation did not constitute a “crime of violence” for purposes

of U.S.S.G. § 2L1.2(b)(1)(A)(ii). He correctly concedes that his

argument is foreclosed by United States v. Garcia-Mendez, 420

F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 05-40399 -2-

(2006), but he raises the argument to preserve it for further

review. He also argues that Garcia-Mendez was incorrectly

decided. We do not disturb our holding in Garcia-Mendez. See

United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991) (one

panel of this court may not overrule another panel).

Flores-Zamudio also challenges the constitutionality of

§ 1326(b). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Flores-Zamudio 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). Flores-Zamudio 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.