United States v. Navarro

* 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opinion should not be published and is not precedent except under the limited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 7, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-11262
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BALDEMAR CAMPUZANO NAVARRO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
No. 4:06-CR-102-ALL
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Baldemar Navarro appeals his guilty-plea conviction of and
sentence for illegal reentry into the United States following de-
portation, in violation of 8 U.S.C. § 1326. He argues that his
sentence is unreasonable and, additionally, a denial of due process

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No. 06-11262
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and equal protection because it is longer than similarly situated
defendants who are sentenced in districts with “fast-track” sen-
tencing programs. His contention that sentencing disparities cre-
ated by fast-track programs rendered his sentence unreasonable is
foreclosed by United States v. Aguirre-Villa, 460 F.3d 681, 682
(5th Cir. 2006), pet. for cert. filed (Nov. 13, 2006) (No.
06-7792). Moreover, he has not established under plain error re-
view that restricting the fast-track program to only certain geo-
graphic locations results in due process and equal protection vio-
lations. See United States v. Marcial-Santiago, 447 F.3d 715, 719
(9th Cir.), cert. denied, 127 S. Ct. 309 (2006).
Navarro challenges the constitutionality of § 1326(b)’s treat-
ment of prior felony and aggravated felony convictions as sentenc-
ing factors rather than elements of the offense that must be found
by a jury. That constitutional issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although Navar-
ro contends that Almendarez-Torres was incorrectly decided and that
a majority of the Supreme Court would overrule it in light of Ap-
prendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly re-
jected such arguments on the basis that Almendarez-Torres remains
binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
Cir. 2005). See Rangel-Reyes v. United States, 126 S. Ct. 2873
(2006). Navarro 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.

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No. 06-11262
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Navarro contends that the district court violated FED. R. CRIM.
P. 11(b)(1) by failing to inform him of the “aggravated felony”
provision of 1326(b)(2). He concedes that this issue is also fore-
closed by Almendarez-Torres.
AFFIRMED.

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