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. 05-40772
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERARDO RAMIREZ-AGUILAR, also known as Ever Enerio Ramirez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2550-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Everardo Ramirez-Aguilar appeals his guilty-plea conviction
and sentence for attempted unlawful reentry into the United
States following removal. Ramirez-Aguilar argues that the
district court erred by finding that his prior Texas felony
conviction for burglary of a habitation was a crime of violence
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court did not
err. See United States v. Garcia-Mendez, 420 F.3d 454, 456-57
(5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006).
*
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this opinion should not be published and is not precedent except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. 05-40772
-2-
Ramirez-Aguilar’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ramirez-Aguilar 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). Ramirez-Aguilar 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.