United States v. Romero-Ortiz , 169 F. App'x 267 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40759
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHESTER ENRIQUE ROMERO-ORTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-903-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Chester Enrique Romero-Ortiz appeals his guilty-plea
conviction for being an alien found in the United States after
deportation subsequent to an aggravated felony conviction. The
district court sentenced Romero-Ortiz to 33 months of
imprisonment and three years of supervised release. To the
extent that Romero-Ortiz’s challenge to the constitutionality of
8 U.S.C. § 1326 is construed as a challenge to his conviction, it
is not precluded by the terms of the plea agreement.
*
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this opinion should not be published and is not precedent except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. 05-40759
-2-
Romero-Ortiz’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Romero-Ortiz 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). Romero-Ortiz 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.
Accordingly, the judgment of the district court is
AFFIRMED.