United States v. Sorto

                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 12, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40924
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NELSON ANTONIO SORTO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:05-CR-105-ALL
                      --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Nelson Antonio Sorto appeals his guilty-plea conviction and

sentence for illegal reentry.   Sorto argues that the “felony” and

“aggravated felony” provisions of 

(b)(1) and (2)

are unconstitutional.

     Sorto’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 

 (1998).

Although Sorto contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule


     *
       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this opinion should not be published and is not precedent except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. 05-40924
                                -2-

Almendarez-Torres in light of Apprendi v. New Jersey, 

 (2000), we have repeatedly rejected such arguments on the

basis that Almendarez-Torres remains binding.   See United States

v. Garza-Lopez, 

 (5th Cir.), cert. denied,

 (2005).   Sorto 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.

     The judgment of the district court is AFFIRMED.