USA v. Sopony-Valenzuela, No. 06-40197 (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 October 24, 2006 Charles R. Fulbruge III Clerk No. 06-40197 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELMER ESTUARDO SOPONY-VALENZUELA, also known as Julio Rene Cardona-Rodriguez, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-690-ALL -------------------Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Elmer Estuardo Sopony-Valenzuela appeals his guilty-plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He challenges the constitutionality of § 1326(b) s treatment of prior felony and aggravated felony convictions as sentencing factors rather than as elements of the offense that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40197 -2The Government does not seek to invoke the appeal waiver and has thus waived the issue. See United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006). Sopony-Valenzuela s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Sopony-Valenzuela 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). Sopony-Valenzuela 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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