United States v. Herrera-Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 24, 2006

Charles R. Fulbruge III
Clerk
No. 05-40645
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

INOCENCIO HERRERA-PEREZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1088-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Inocencio Herrera-Perez (Herrera) appeals his guilty-plea

conviction and sentence for being found unlawfully in the United

States after previously being deported. Herrera argues that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional.

Herrera’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Herrera contends that Almendarez-Torres was incorrectly

*
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this opinion should not be published and is not precedent except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. 05-40645
-2-

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). Herrera 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.

The judgment of the district court is AFFIRMED.