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. 05-40992
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO BORJAS-GUERRERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-114-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Roberto Borjas-Guerrero (Borjas) appeals his conviction
under 8 U.S.C. § 1326(a) and (b) for illegal reentry into the
United States after having been deported following conviction for
an aggravated felony. He asserts that the “felony” and
“aggravated felony” provisions of the statute cause it to be
unconstitutional on its face.
The Government asserts that waiver language in Borjas’s plea
agreement bars his appeal. However, we need not decide this
issue here, as the underlying constitutional issue raised 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this opinion should not be published and is not precedent except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. 05-40992
-2-
precluded by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Borjas contends that Almendarez-Torres was
incorrectly decided and that majority of the Supreme Court would
overrule it 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). Borjas 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.
The district court’s judgment is AFFIRMED.