United States v. Hernandez-Estrada

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 9, 2005

Charles R. Fulbruge III Clerk No. 05-40346 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDRES HERNANDEZ-ESTRADA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-861-ALL --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Andres Hernandez-Estrada appeals his guilty-plea conviction

for illegal reentry into the United States following a prior

felony conviction. See 8 U.S.C. § 1326 (a), (b).

For the first time on appeal, Hernandez-Estrada 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). Hernandez-Estrada acknowledges

that his argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the issue

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40346 -2-

for Supreme Court review. Apprendi did not overrule Almendarez-

Torres. See Apprendi, 530 U.S. at 489-90; United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

AFFIRMED.