United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 05-40503
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO ARIAS-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-686-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Pedro Arias-Gonzalez appeals his jury conviction of being an
alien unlawfully found in the United States after deportation,
having previously been convicted of an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and 1326(b). Arias-Gonzalez’s
constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Arias-Gonzalez contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
*
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this opinion should not be published and is not precedent except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. 05-40503
-2-
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.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Arias-Gonzalez 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.