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. 05-40523
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERIBERTO GARCIA-MESA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1094-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Heriberto Garcia-Mesa (Garcia) appeals his conviction and
the 37-month sentence imposed following his guilty plea to being
a previously deported alien unlawfully present in the United
States. Garcia’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 Garcia 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this opinion should not be published and is not precedent except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. 05-40523
-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). Garcia 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.