United States v. Rivera-Mendez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 21, 2006

Charles R. Fulbruge III Clerk No. 05-41499 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR HUGO RIVERA-MENDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-309-ALL --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Victor Hugo Rivera-Mendez appeals from his conviction under

8 U.S.C. § 1326. Rivera-Mendez’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Rivera-Mendez 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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41499 -2-

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005). Rivera-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.

AFFIRMED.