United States v. Sinisterra-Banguer

* 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this opinion should not be published and is not precedent except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
October 25, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20113
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER SINISTERRA-BANGUER, also known as Walter Banguer
Sinisterra, also known as Walter Robinson Sinisterra-Banguer,
also known as Walter Sinisterra Banguera,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-275-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Walter Sinisterra-Banguer appeals from his guilty-plea
conviction and sentence for illegal reentry after deportation in
violation of 8 U.S.C. § 1326. Sinisterra-Banguer argues that the
district court erred by imposing a 16-level adjustment under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) based upon his Texas conviction for
burglary of a habitation. As Sinisterra-Banguer concedes, his
argument is foreclosed. See United States v. Valdez-Maltos, 443
F.3d 910, 911 (5th Cir. 2006), cert. denied, 2006 WL 2094539

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No. 06-20113
-2-
(U.S. Oct. 2, 2006) (No. 06-5473); United States v.
Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1398 (2006).
Sinisterra-Banguer also challenges, in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), the constitutionality of
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury.
Sinisterra-Banguer’s constitutional challenge to § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although he 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). Sinisterra-Banguer 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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