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. 05-41058
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GARCIA-HERRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-221-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Garcia-Herrera appeals his sentence for illegal reentry
into the United States after deportation following a conviction
for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and
(b). Although the Government seeks to dismiss Garcia-Herrera’s
appeal as barred by the appellate waiver provision in his plea
agreement, we need not decide whether the waiver precludes
consideration of the instant appeal as Garcia-Herrera’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Garcia-Herrera
*
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this opinion should not be published and is not precedent except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. 05-41058
-2-
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). Garcia-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. His sentence is affirmed.
AFFIRMED.