United States v. Amaya-Membreno

169 F. App'x 356

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 24, 2006

Charles R. Fulbruge III Clerk No. 05-40906 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE RIGOBERTO AMAYA-MEMBRENO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-28-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Rigoberto Amaya-Membreno (Amaya) appeals his conviction

and sentence for illegal reentry by an alien after deportation.

He argues that the provisions of 8 U.S.C. § 1326(b) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Amaya’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Amaya contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40906 -2-

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). Amaya

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.

Accordingly, the judgment of the district court is AFFIRMED.