United States v. Vaca-Andrade

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 24, 2006

Charles R. Fulbruge III
Clerk
No. 05-41078
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO VACA-ANDRADE,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-50-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Francisco Vaca-Andrade (Vaca) appeals his conviction for

illegal reentry by an alien after deportation. He argues that

the provisions of 8 U.S.C. § 1326(b) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Vaca’s constitutional challenge to § 1326(b) is foreclosed

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

Although Vaca contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

*
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this opinion should not be published and is not precedent except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. 05-41078
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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). Vaca

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.

Accordingly, the judgment of the district court is AFFIRMED.