                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
       IN THE UNITED STATES COURT OF APPEALS
                                           August 21, 2007
                FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                              No. 06-50875
                           Conference Calendar


UNITED STATES OF AMERICA

                                        Plaintiff-Appellee

v.

RUBEN JIMENEZ-SILVESTRE, also known as Juan De La Vellano

                                     Defendant-Appellant
                    ------------------------------
consolidated with

                               No. 06-50883
                           Conference Calendar


UNITED STATES OF AMERICA

                                        Plaintiff-Appellee

v.

JUAN DE LA VELLANO, also known as Ruben Jimenez-Silvestre

                                        Defendant-Appellant


               Appeals from the United States District Court
                     for the Western District of Texas
                       USDC No. 2:06-CR-217-ALL
                       USDC No. 2:05-CR-638-ALL
                                 No. 06-50875
                               c/w No. 06-50883

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Ruben Jimenez-Silvestre, who is also known as Juan De La Vellano,
appeals following his guilty-plea conviction of, and sentence for, violating
8 U.S.C. § 1326 by being found in the United States without permission after
deportation and the concomitant revocation of his supervised release. He
argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the three-
year term of supervised release imposed in relation to his new conviction exceeds
the statutory maximum sentence allowed for the § 1326(a) offense charged in his
indictment. He challenges the constitutionality of § 1326(b)’s treatment of prior
felony and aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
      Jimenez-Silvestre’s    constitutional   challenge     is   foreclosed   by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although he
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.
2005); Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United States v.
Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007.
Jimenez-Silvestre 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.
      Jimenez-Silvestre’s appeal of his revocation of supervised release was
consolidated with the instant appeal. He has not, however, raised any argument


      *
       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.

                                       2
                                 No. 06-50875
                               c/w No. 06-50883

with respect to these proceedings. Any such claim is thus deemed abandoned.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      The Government’s motion for summary affirmance is GRANTED, the
Government’s motion for an extension of time to file a brief is DENIED, and the
judgments of the district court are AFFIRMED.




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