United States v. Juan-Serrano , 169 F. App'x 299 ( 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 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-40669
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS DON JUAN-SERRANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-640-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jesus Don Juan-Serrano pleaded guilty to illegal reentry
after deportation and was sentenced to 57 months of imprisonment
and a three-year term of supervised release. For the first time
on appeal, Don Juan-Serrano challenges the constitutionality of 8
U.S.C. § 1326(b).
Don Juan-Serrano’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Don Juan-Serrano contends that Almendarez-Torres was
*
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this opinion should not be published and is not precedent except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. 05-40669
-2-
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). Don Juan-Serrano 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.