United States v. Andrade

177 F. App'x 393

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006

Charles R. Fulbruge III Clerk No. 05-41040 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ANTONIO ANDRADE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-56-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Jose Antonio Andrade was convicted of being unlawfully

present in the United States following a prior deportation. He

was sentenced to 63 months of imprisonment and a three-year term

of supervised release. The Government seeks enforcement of the

waiver provisions in Andrade’s plea agreement. We need not

decide the applicability of the waiver provisions in this case

because the issue that Andrade raises is foreclosed.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41040 -2-

In his sole issue on appeal, Andrade renews his argument

that 8 U.S.C. § 1326 is facially unconstitutional because it

treats prior felony and aggravated felony convictions as

sentencing factors rather than elements of the offense that must

be found by a jury in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).

Andrade’s constitutional challenge is foreclosed by

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

Although Andrade 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). Andrade

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.