United States v. Zuniga-Enriquez

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. 05-41784 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LORENZO ZUNIGA-ENRIQUEZ, also known as Florencio Zuniga- Enriquez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-429-ALL --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Lorenzo Zuniga-Enriquez (Zuniga) appeals his illegal reentry

conviction and sentence, challenging the constitutionality of

8 U.S.C. § 1326(b)(1) and (2). Zuniga’s constitutional challenge

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

224, 235 (1998). Although Zuniga 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41784 -2-

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). Zuniga 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.