United States v. Diaz-Santana

176 F. App'x 526

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. 05-40794 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS DIAZ-SANTANA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1908-1 --------------------

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

PER CURIAM:*

Jose Luiz Diaz-Santana appeals from a guilty-plea conviction

for reentry of a deported alien in violation of 8 U.S.C.

§ 1326(b)(2). Diaz-Santana challenges the constitutionality

§ 1326(b). His constitutional challenge is foreclosed by

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

Although Diaz-Santana contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40794 -2-

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). Diaz-Santana 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.