United States Court of Appeals
Fifth Circuit
FILED
February 23, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40791
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS GONZALEZ-ROJAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-27-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Gonzalez-Rojas (Gonzalez) appeals following his
conviction and sentence under 8 U.S.C. § 1326(a) and (b) for
being illegally present in the United States after having been
deported following conviction for an aggravated felony. Gonzalez
asserts that the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b) are unconstitutional. The Government seeks to
enforce a waiver-of-appeal provision contained in Gonzalez’s plea
agreement.
*
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this opinion should not be published and is not precedent except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. 05-40791
-2-
Gonzalez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Gonzalez 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). Gonzalez 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.
Given the above disposition, we do not decide whether
Gonzalez’s appeal is barred by the waiver provision of his plea
agreement.
The judgment of the district court is AFFIRMED.