United States v. Avalos-Cortez , 169 F. App'x 354 ( 2006 )


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  •                                                         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. 05-40733
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RIGOBERTO AVALOS-CORTEZ, also known as Rigoberto
    Cortez-Avalos,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:05-CR-38-ALL
    --------------------
    Before GARZA, DENNIS, and PRADO, Circuit Judges.
    PER CURIAM:*
    Rigoberto Avalos-Cortez appeals his conviction and sentence
    for illegal reentry after a previous deportation.     Avalos-
    Cortez’s constitutional challenge to 
    8 U.S.C. § 1326
    (b) is
    foreclosed by Almendarez-Torres v. United States, 
    523 U.S. 224
    ,
    235 (1998).    Although Avalos-Cortez 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
    *
    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    this opinion should not be published and is not precedent except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. 05-40733
    -2-
    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).   Avalos-
    Cortez 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: 05-40733

Citation Numbers: 169 F. App'x 354

Filed Date: 2/24/2006

Precedential Status: Non-Precedential

Modified Date: 4/17/2021