United States v. Chavez-Perez

176 F. App'x 501

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 12, 2006

Charles R. Fulbruge III Clerk No. 05-40663 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CHAVEZ-PEREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1895-1 --------------------

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

PER CURIAM:*

Juan Chavez-Perez (Chavez) appeals his guilty plea

conviction and sentence for illegal reentry into the United

States. 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). His

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998). Although Chavez

contends that Almendarez-Torres was incorrectly decided and that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40663 -2-

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). Chavez 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. Because Chavez has shown no error in the judgment of the

district court, that judgment is AFFIRMED.