United States v. Esquivel-Huerta ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-41459
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLEGARIO ESQUIVEL-HUERTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-245-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Olegario Esquivel-Huerta appeals his guilty plea conviction
and sentence for being unlawfully present in the United States
after deportation following an aggravated felony conviction. 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), and he contends that
his challenge is not barred by the appeal-waiver provision in his
plea agreement. The Government seeks enforcement of the waiver
*
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this opinion should not be published and is not precedent except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. 05-41459
-2-
provision. We assume, arguendo only, that the waiver does not
bar the instant appeal.
Esquivel-Huerta’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Esquivel-Huerta 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).
Esquivel-Huerta 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.