United States v. Alvarado

169 F. App'x 202

Opinion

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. 05-40312 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO ALVARADO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-773-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Antonio Alvarado 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).

Alvarado’s constitutional challenge to § 1326 is foreclosed.

Although Alvarado contends that Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998), was incorrectly decided and

that a majority of the Supreme Court would overrule Almendarez-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40312 -2-

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). Alvarado 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.