United States v. Rodriguez-Maradiaga , 169 F. App'x 186 ( 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. 05-40849
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON ORNELAS-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-109-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Ramon Ornelas-Rodriguez appeals his guilty-plea sentence for
being unlawfully found in the United States following
deportation, in violation of 8 U.S.C. § 1326(a) and (b). We need
not decide the applicability of the waiver provisions in Ornelas-
Rodriguez’s plea agreement because his constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Ornelas-Rodriguez contends that
Almendarez-Torres was incorrectly decided and that a majority of
*
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this opinion should not be published and is not precedent except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. 05-40849
-2-
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).
Ornelas-Rodriguez 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.