United States v. Cruz-Alvarado , 168 F. App'x 624 ( 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. 04-41587
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR CRUZ-ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-583-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Hector Cruz-Alvarado pleaded guilty to being found in
the United States after deportation and was sentenced to 46
months of imprisonment and two years of supervised release.
Cruz-Alvarado argues that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
Specifically, he argues that the viability of Almendarez-Torres
v. United States, 523 U.S. 224 (1998), is in doubt in light of
later Supreme Court cases such as Apprendi v. New Jersey, 530
U.S. 466 (2000), and Shepard v. United States, 125 S. Ct. 1254*
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this opinion should not be published and is not precedent except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. 04-41587
-2-
(2005). We need not decide the applicability of the waiver
provision in this case because the issue that Cruz-Alvarado
raises is foreclosed.
Cruz-Alvarado’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States. Although Cruz-Alvarado
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, 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). Cruz-Alvarado
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.
AFFIRMED.