United States v. Gonzalez-Rojas , 169 F. App'x 216 ( 2006 )

PER CURIAM: ^*

Jose Luis Gonzalez-Rojas (Gonzalez) appeals following his conviction and sentence under 8 U.S.C. § 1326(a) and (b) for being illegally present in the United States after having been deported following conviction for an aggravated felony. Gonzalez asserts that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. The Government seeks to enforce a waiver-of-appeal provision contained in Gonzalez’s plea agreement.

Gonzalez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Gonzalez 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Gonzalez 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.

Given the above disposition, we do not decide whether Gonzalez’s appeal is barred by the waiver provision of his plea agreement.

The judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.