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. 05-41514
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL TREVINO FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-373-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Raul Trevino Flores appeals his sentence for illegal
reentry, in violation of 8 U.S.C. § 1326(a) and (b). Although
the Government seeks to dismiss the appeal as barred by the
appellate waiver provision in Trevino Flores’s plea agreement, we
need not decide whether the waiver precludes consideration of the
instant appeal as Trevino Flores’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Trevino Flores contends that
Almendarez-Torres was incorrectly decided and that a majority of
*
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this opinion should not be published and is not precedent except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. 05-41514
-2-
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). Trevino
Flores 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. His conviction and sentence
are AFFIRMED.