USA v. Acosta-Licea, No. 06-40172 (5th Cir. 2006)

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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 12, 2006 Charles R. Fulbruge III Clerk No. 06-40172 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VALENTE ACOSTA-LICEA, also known as Valente Acosta, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-825 -------------------Before KING, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Valente Acosta-Licea appeals from his guilty-plea conviction and sentence for being found in the United States after previous deportation. See 8 U.S.C. § 1326. Acosta-Licea 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 Acosta-Licea concedes, his argument is foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 455-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006), and although he argues that Garcia-Mendez was incorrectly decided, * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40172 -2Garcia-Mendez remains binding. See United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002). Acosta-Licea s constitutional challenge to § 1326 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Acosta-Licea 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). Acosta- Licea 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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