United States v. Hernandez-Perez

177 F. App'x 381

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. 05-41164 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE EDUARDO HERNANDEZ-PEREZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-214-ALL --------------------

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

PER CURIAM:*

Jorge Eduardo Hernandez-Perez (Hernandez) appeals his

conviction and sentence for attempted illegal reentry after

deportation. On appeal, he challenges the constitutionality of

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b), and he contends that his challenge is not barred by

the appeal-waiver provision of his plea agreement. The

Government seeks enforcement of the waiver provision. Because

Hernandez’s substantive contention is foreclosed, we need not

address whether to enforce the waiver provision.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41164 -2-

The constitutional issue raised by Hernandez is foreclosed

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

Although Hernandez 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

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). Hernandez 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.