United States v. Gonzalez-Guerra , 169 F. App'x 284 ( 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. 05-40862
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GONZALEZ-GUERRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-77-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Gonzalez-Guerra (Gonzalez) appeals his guilty-plea
conviction and sentence for illegal reentry after a previous
deportation. He argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). We need
not decide the applicability of the plea-agreement waivers in
this case because the issue that Gonzalez raises is foreclosed.
Gonzalez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
*
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this opinion should not be published and is not precedent except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. 05-40862
-2-
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, 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). 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.
AFFIRMED.