United States v. Rodriguez-Resendiz

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. 05-40864
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO ALBERTO RODRIGUEZ-RESENDIZ,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-64-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Mario Alberto Rodriguez-Resendiz 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).

Rodriguez-Resendiz’s constitutional challenge is foreclosed

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

Although Rodriguez-Resendiz contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

*
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this opinion should not be published and is not precedent except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. 05-40864
-2-

would overrule Almendarez-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).

Rodriguez-Resendiz 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.