United States v. Torres-Luna , 202 F. App'x 841 ( 2006 )


Menu:
  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 October 24, 2006
    Charles R. Fulbruge III
    Clerk
    No. 05-41828
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ROSENDO TORRES-LUNA,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:05-CR-606
    --------------------
    Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
    PER CURIAM:*
    Rosendo Torres-Luna (Torres) appeals his guilty-plea
    conviction and sentence for being an alien found unlawfully in
    the United States after deportation and following an aggravated
    felony conviction.   Torres argues that the “felony” and
    “aggravated felony” provisions of 
    8 U.S.C. § 1326
    (b)(1) and (2)
    are unconstitutional.   Torres also asserts that his appeal is not
    barred by the waiver-of-appeal provision in his plea agreement.
    The Government argues that the waiver bars the appeal.
    *
    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    this opinion should not be published and is not precedent except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. 05-41828
    -2-
    We assume, arguendo only, that the waiver does not bar the
    instant appeal.   Torres’s constitutional challenge is foreclosed
    by Almendarez-Torres v. United States, 
    523 U.S. 224
    , 235 (1998).
    Although Torres 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
     (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).   Torres 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.
    

Document Info

Docket Number: 05-41828

Citation Numbers: 202 F. App'x 841

Judges: DeMOSS, Jolly, Per Curiam, Stewart

Filed Date: 10/24/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023