United States v. Rodriguez-Maradiaga

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. 05-40849 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RAMON ORNELAS-RODRIGUEZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-109-ALL -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Ramon Ornelas-Rodriguez appeals his guilty-plea sentence for being unlawfully found in the United States following deportation, in violation of 8 U.S.C. § 1326(a) and (b). We need not decide the applicability of the waiver provisions in Ornelas- Rodriguez’s plea agreement because his constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Ornelas-Rodriguez contends that Almendarez-Torres was incorrectly decided and that a majority of * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40849 -2- 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). Ornelas-Rodriguez 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.