United States v. Alanis-Zuniga

135 F. App'x 759

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 23, 2005
• Docket: 04-41510
• Status: Unpublished

Opinion

PER CURIAM: *

Benancio Alanis-Zuniga (Alanis-Zuniga) appeals his guilty plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. The Government does not seek enforcement of Alanis-Zuniga’s waiver of appeal; therefore, this court will not enforce it. See United States v. Rhodes, 253 F.3d 800, 804 (5th Cir.2001).

For the first time on appeal, Alanis-Zuniga contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). However, as Alanis-Zuniga concedes, this argument is foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.