United States v. Morales

169 F. App'x 280

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 05-40807 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISIDRO GABRIEL MORALES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-1006-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Isidro Gabriel Morales appeals his sentence under 8 U.S.C.

§ 1326(a) and (b) for illegal reentry into the United States

after having been deported following conviction for an aggravated

felony. Morales asserts that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are facially

unconstitutional.

The constitutional issue raised is foreclosed by Almendarez-

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40807 -2-

Morales contends that Almendarez-Torres was incorrectly decided

and that majority of the Supreme Court would overrule it 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).

Morales 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.