United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-40296
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PERFECTO MONTES-CASTILLO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-522-ALL
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Perfecto Montes-Castillo appeals his bench-trial conviction
for illegal reentry into the United States after deportation. He
argues that the evidence was insufficient to establish that he
had been previously deported because the Government did not
introduce into evidence a signed copy of the order of
deportation. Montes-Castillo does not dispute that the evidence
established that he was an alien and that he reentered the United
States without the Attorney General’s consent to reenter. A
review of the record indicates that the evidence, particularly
*
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this opinion should not be published and is not precedent except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. 05-40296
-2-
the Warrant of Deportation executed in August 2000, was
sufficient to establish that Montes-Castillo had been previously
deported. See United States v. Mathes, 151 F.3d 251, 252 (5th
Cir. 1998); 8 U.S.C. § 1326; United States v. Ramirez-Gamez, 171
F.3d 236, 238 (5th Cir. 1999); United States v. Flores-Peraza,
58 F.3d 164, 166 (5th Cir. 1995).
Montes-Castillo 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). Montes-Castillo’s constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Montes-Castillo contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, 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). Montes-Castillo 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, Montes-Castillo’s conviction and sentence
are AFFIRMED.