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. 05-41107
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAMILO VARGAS-ESPINOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-12-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Camilo Vargas-Espinoza (“Vargas”) appeals from his
guilty-plea conviction for attempted illegal reentry after
removal. The district court sentenced Vargas to 46 months of
imprisonment and three years of supervised release. To the
extent that Vargas’s challenge to the constitutionality of
8 U.S.C. § 1326 is construed as a challenge to his conviction, it
is not precluded by the terms of his appellate-waiver provision.
*
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this opinion should not be published and is not precedent except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. 05-41107
-2-
Vargas’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Vargas 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 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). Vargas 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.
Accordingly, the judgment of the district court is
AFFIRMED.