United States v. Zaquero-Sanchez

176 F. App'x 511

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 12, 2006

Charles R. Fulbruge III Clerk No. 05-40755 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURO ZAQUERO-SANCHEZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1883-ALL --------------------

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

PER CURIAM:*

Mauro Zaquero-Sanchez (Zaquero) appeals his conviction and

sentence for illegal reentry after previous deportation. He

argues that the “felony” and “aggravated felony” provisions of 8

U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of

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

Zaquero’s constitutional challenge is foreclosed by

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

Although Zaquero contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40755 -2-

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). Zaquero

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.