                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 26, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41755
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SERGIO ELIUD GARZA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:04-CR-269-ALL
                      --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Sergio Eliud Garza pleaded guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

The district court determined that Garza was an armed career

criminal and sentenced him to the statutory minimum of 180 months

in prison pursuant to 18 U.S.C. § 924(e).

     Garza argues that the district court erred in determining

that his Texas conviction for burglary of a habitation was a

qualifying violent felony conviction for purposes of 18 U.S.C.


     *
       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this opinion should not be published and is not precedent except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. 04-41755
                                  -2-

§ 924(e).   Garza contends that this court’s holding to the

contrary in United States v. Silva, 957 F.2d 157, 162 (5th Cir.

1992), was undercut by Shepard v. United States, 125 S. Ct. 1254

(2005).   Shepard did not undercut Silva; Shepard extended the

holding of Taylor v. United States, 495 U.S. 575 (1990), to cases

in the guilty-plea context and clarified which documents could be

considered when determining whether a prior conviction is for a

generic burglary that can be used to enhance a sentence under the

Armed Career Criminal Act.    See Shepard 125 S. Ct. at 1263.

Alternatively, Garza concedes that his argument is foreclosed by

Silva, but he nevertheless raises it here to preserve it for

further review.

     Garza argues that his sentence was improperly enhanced under

18 U.S.C. § 924(e) because the indictment did not contain any

information regarding his prior convictions and because the fact

of those convictions were not proven beyond a reasonable doubt.

He concedes that his argument is foreclosed by circuit precedent.

See United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002);

United States v. Affleck, 861 F.2d 97, 99 (5th Cir. 1988).      He

further concedes that is argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998).   Garza is raising

the issue to preserve it for possible further review.

     Garza also argues that the statute of conviction, 18 U.S.C.

§ 922(g)(1), is unconstitutional because it does not require a

substantial effect on interstate commerce and is thus an improper
                           No. 04-41755
                                -3-

exercise of Congress’s power under the Commerce Clause.    This

argument is unavailing.   “This court has repeatedly emphasized

that the constitutionality of § 922(g)(1) is not open to

question.”   United States v. De Leon, 170 F.3d 494, 499 (5th Cir.

1999).   Garza concedes that his argument is foreclosed and raises

it to preserve it for further possible review.

     AFFIRMED.
