United States v. Velasquez-Diaz

* 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this opinion should not be published and is not precedent except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. 06-40212
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODRIGO VELASQUEZ-DIAZ, also known as Daniel Alexis
Velasquez-Diaz,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-620-ALL
--------------------
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Rodrigo Velasquez-Diaz (Velasquez) appeals his guilty plea
conviction and 30-month sentence for illegally reentering the
United States after having been deported previously.
Velasquez challenges the constitutionality of 8 U.S.C.
§ 1326(b). Velasquez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Velasquez contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court

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No. 06-40212
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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). Velasquez 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.
Accordingly, the judgment of the district court is AFFIRMED.

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