United States v. Borjas-Guerrero

177 F. App'x 385

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. 05-40992 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO BORJAS-GUERRERO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-114-ALL --------------------

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

PER CURIAM:*

Roberto Borjas-Guerrero (Borjas) appeals his conviction

under 8 U.S.C. § 1326(a) and (b) for illegal reentry into the

United States after having been deported following conviction for

an aggravated felony. He asserts that the “felony” and

“aggravated felony” provisions of the statute cause it to be

unconstitutional on its face.

The Government asserts that waiver language in Borjas’s plea

agreement bars his appeal. However, we need not decide this

issue here, as the underlying constitutional issue raised is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40992 -2-

precluded by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Borjas contends that Almendarez-Torres was

incorrectly decided and that majority of the Supreme Court would

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

(2000), 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). Borjas 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.

The district court’s judgment is AFFIRMED.