* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

October 3, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50029

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE VERASTEGUI,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:05-CR-139-ALL

--------------------

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Verastegui appeals from his guilty-plea convictions and

sentences for being a felon in possession of a firearm and

unlawful reentry of a deported alien. He argues that his

sentences were unreasonable because they exceeded the advisory

guideline range, they were based upon improper departure factors,

they were greater than necessary to meet the sentencing goals of

18 U.S.C. § 3553(a)(2), and they were based upon a guideline

calculation error. 
No. 06-50029

-2-

Although the advisory guideline range was 63 to 78 months of

imprisonment, the district court utilized an upward departure and

a variance to sentence Verastegui to concurrent terms of 120

months of imprisonment. The district court held that the upward

departure was warranted pursuant to U.S.S.G. § 4A1.3 because

Verastegui’s criminal history category did not adequately

describe his criminal conduct. The court also held that a

variance was warranted in order to meet the factors set forth in

18 U.S.C. § 3553(a)(1) and (2), thereby necessitating a nonGuideline sentence. Verastegui has failed to show that the

district court abused its discretion by departing upwardly or

that his non-Guideline sentence was unreasonable. See United

States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006);

United States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006). 

Moreover, as conceded by Verastegui, his challenge to the

adjustment set forth in U.S.S.G. § 2L1.2(b)(1)(C) is foreclosed

by this court’s holding in United States v. Hinojosa-Lopez, 130

F.3d 691, 693-94 (5th Cir. 1997). He raises this issue in order

to preserve it in light of the Supreme Court’s grant of

certiorari regarding this issue in United States v. ToledoFlores, 149 F. App’x 241 (5th Cir. 2005), cert. granted, 126 S.

Ct. 1652 (2006).

Verastegui argues that 18 U.S.C. § 922(g) is facially

unconstitutional and unconstitutional as applied because the

Government failed to establish the interstate commerce element. 
No. 06-50029

-3-

Verastegui concedes that his constitutional challenge is

foreclosed by circuit precedent, and he raises it only to

preserve it for review by the Supreme Court. See United States

v. Guidry, 406 F.3d 314, 318-19 (5th Cir.), cert. denied, 126 S.

Ct. 190 (2005); United States v. Daugherty, 264 F.3d 513, 318

(5th Cir. 2001); United States v. Rawls, 85 F.3d 240, 242-43 (5th

Cir. 1996).

Verastegui also challenges the constitutionality of 8 U.S.C.

§ 1326(b). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). 

Although Verastegui 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). Verastegui properly

concedes that his argument is foreclosed by Almendarez-Torres and

circuit precedent, but he raises it here solely to preserve it

for further review.

AFFIRMED.