United States v. Rangel-Reyes

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006 Charles R. Fulbruge III Clerk No. 05-40256 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN RANGEL-REYES, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 6:04-CR-80-1 -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Juan Rangel-Reyes (Rangel) appeals his conviction and sentence for illegal reentry, raising a constitutional challenge to 8 U.S.C. § 1326(b)(1) and (2). We do not reach the applicability of the sentencing waiver because Rangel’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Rangel 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 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40256 -2- 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). Rangel 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.