United States v. Hernandez-Mendez

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED JUNE 22, 2006 June 21, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-41001 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME HERNANDEZ-MENDEZ, also known as Ramon Martinez-Mendez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-454-ALL --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jamie Hernandez-Mendez appeals his guilty plea conviction

and sentence for illegal reentry following deportation.

Hernandez-Mendez argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).

Hernandez-Mendez’s constitutional challenge is foreclosed by

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41001 -2-

Although Hernandez-Mendez 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). Hernandez-Mendez 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 judgment of the district court is AFFIRMED.