United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 05-40346
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES HERNANDEZ-ESTRADA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-861-ALL
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Andres Hernandez-Estrada appeals his guilty-plea conviction
for illegal reentry into the United States following a prior
felony conviction. See 8 U.S.C. § 1326 (a), (b).
For the first time on appeal, Hernandez-Estrada 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). Hernandez-Estrada acknowledges
that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
*
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this opinion should not be published and is not precedent except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. 05-40346
-2-
for Supreme Court review. Apprendi did not overrule Almendarez-
Torres. See Apprendi, 530 U.S. at 489-90; United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.