United States v. Torres-Gonzalez

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. 05-40896 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFREDO TORRES-GONZALEZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-148-ALL -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Alfredo Torres-Gonzalez (Torres) pleaded guilty to one count of reentering the United States without permission after having been deported. Torres contends that 8 U.S.C. § 1326(b), under which he was convicted, is unconstitutional. The Government contends that Torres waived his right to appeal. We need not decide the applicability of the waivers in this case because the issue that Torres raises is foreclosed. Torres’s constitutional challenge to 8 U.S.C. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40896 -2- § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Torres 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). Torres 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.