United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 17, 2005
Charles R. Fulbruge III
Clerk
No. 05-40072
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO RODRIGUEZ RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-741-ALL
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Mario Rodriguez-Rodriguez (“Rodriguez”) appeals his sentence
following his guilty-plea conviction of illegally reentering the
United States after having been deported previously following a
conviction for an aggravated felony. He seeks to challenge the
constitutionality of 8 U.S.C. § 1326(b). He argues that the
appeal waiver contained in his plea agreement does not bar the
instant appeal.
*
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this opinion should not be published and is not precedent except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. 05-40072
-2-
Rodriguez’s appeal waiver was rendered not knowing and
voluntary when the magistrate judge advised Rodriguez at his
rearraignment hearing that he could appeal an “illegal sentence.”
See United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir.
1999). Therefore, his appeal waiver does not bar the instant
appeal.
Rodriguez argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He
concedes that his challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), and he raises it to
preserve it for further review by the Supreme Court.
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). We therefore must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted).
AFFIRMED.