United States v. Lopez-Rodriguez

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. 05-41334
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMAS LOPEZ-RODRIGUEZ,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-268-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Tomas Lopez-Rodriguez (Lopez) appeals from his conviction of

being illegally present in the United States after having been

deported. He challenges the constitutionality of the “felony”

and “aggravated felony” provisions of 8 U.S.C. § 1326(b) and

contends that his challenge is not barred by the appeal-waiver

provision of his plea agreement. The Government seeks

enforcement of the waiver provision. Because Lopez’s substantive

contention is foreclosed, we need not address whether to enforce

the waiver provision.

*
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this opinion should not be published and is not precedent except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. 05-41334
-2-

The constitutional issue raised by Lopez is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Lopez 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). Lopez 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.