United States v. Lopez-Rodriguez

176 F. App'x 447

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2006
• Docket: No. 05-41334
• Status: Published

Opinion

PER CURIAM:

*

Tomas Lopez-Rodriguez (Lopez) appeals from his conviction of being illegally present in the United States after having been deported. He challenges the constitutionality of the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) and 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 Lopez’s substantive contention is foreclosed, we need not address whether to enforce the waiver provision.

The constitutional issue raised by Lopez is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Lopez 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Lopez 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.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.