United States v. Jimenez-Calderon

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. 05-40863 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE JIMENEZ-CALDERON, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-961-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Jose Jimenez-Calderon (Jimenez) appeals his guilty-plea conviction and sentence for being illegally present in the United States following removal. Jimenez’s constitutional challenge to the sentence-enhancement provisions of 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Jimenez 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 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40863 -2- 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). Jimenez 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.