United States v. Estrada-Ramirez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006

Charles R. Fulbruge III
Clerk
No. 04-41604
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RENE ROLANDO ESTRADA-RAMIREZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-556-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Rene Rolando Estrada-Ramirez (Estrada) 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). The Government seeks enforcement of the waiver

provision in Estrada’s plea agreement. We need not decide the

applicability of the waiver in this case because this issue is

*
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this opinion should not be published and is not precedent except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. 04-41604
-2-

foreclosed. See Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998). Although Estrada contends that Almendarez-

Torres was incorrectly decided and that a majority of the Supreme

Court 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). Estrada 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.