United States v. Tavera-Teran , 169 F. App'x 301 ( 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. 05-40731
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL TAVERA-TERAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1125-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Manuel Tavera-Teran (Tavera) is appealing his
guilty-plea conviction of being found in the United States after
previous deportation, in violation of 8 U.S.C. § 1326(a) and (b).
He argues that the “felony” and “aggravated felony” provisions of
§ 1326(b)(1) and (2) are unconstitutional.
Tavera’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Tavera contends that Almendarez-Torres was incorrectly
*
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this opinion should not be published and is not precedent except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. 05-40731
-2-
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). Tavera 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.
The judgment of the district court is AFFIRMED.