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. 05-40312
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-773-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Antonio Alvarado appeals his guilty plea conviction and
sentence for illegal reentry after a previous deportation. He
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).
Alvarado’s constitutional challenge to § 1326 is foreclosed.
Although Alvarado contends that Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), was incorrectly decided and
that a majority of the Supreme Court would overrule Almendarez-
*
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this opinion should not be published and is not precedent except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. 05-40312
-2-
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). Alvarado 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.