United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-40810
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RODRIGUEZ-ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-1020-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Jose Rodriguez-Alvarado (Rodriguez) appeals his guilty-plea
conviction and sentence for being unlawfully found in the United
States after deportation, having previously been convicted of an
aggravated felony. 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).
*
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this opinion should not be published and is not precedent except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. 05-40810
-2-
Rodriguez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez 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). Rodriguez 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.