United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2006
Charles R. Fulbruge III
Clerk
No. 05-41662
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR RAMIREZ-NICOLAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-298
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Victor Ramirez-Nicolas (Ramirez) pleaded guilty to a single-
count indictment charging that “after having been convicted of an
aggravated felony, [he] knowingly and unlawfully was present in
the United States” in violation of “Title 8, United States Code,
Sections 1326(a) and 1326 (b).” Ramirez entered his plea
pursuant to a plea agreement wherein he waived the right to
appeal his sentence, but reserved the right to appeal a “sentence
*
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this opinion should not be published and is not precedent except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. 05-41662
-2-
imposed above the statutory maximum” and the right to appeal an
“upward departure” from the Sentencing Guidelines.**
As he did in the district court, Ramirez argues that
§ 1326(b) is unconstitutional on its face. The Government
asserts that Ramirez does not have standing to bring a facial
challenge to the constitutionality of § 1326(b) because Ramirez’s
prior aggravated-felony conviction was, in fact, alleged in his
indictment and admitted by him at the rearraignment, and thus
Ramirez suffered no violation of his Sixth Amendment rights.
“The primary component of standing is that the litigant
seeking action by the court have an injury in fact resulting from
the action which they seek to have the court adjudicate.” United
States v. Shaw, 920 F.2d 1225, 1229 (5th Cir. 1991) (internal
quotations and citations omitted). The standing requirement
ordinarily is satisfied when the person challenging a criminal
statute’s constitutionality has been prosecuted under the
statute. Cf. Johnson v. City of Dallas, 61 F.3d 442, 444 (5th
Cir. 1999) (plaintiffs not convicted under ordinance lacked
standing to challenge the ordinance).
Ramirez was prosecuted and sentenced under § 1326(b).
Accordingly, we reject the Government’s assertion that Ramirez
lacks standing to raise a facial challenge to § 1326(b). Because
**
Ramirez also waived the right “to have facts that the law
makes essential to the punishment either (1) charged in the
indictment or (2) proven to a jury or (3) proved beyond a
reasonable doubt.” The Government neither cites nor relies on
this portion of the waiver in this appeal.
No. 05-41662
-3-
Ramirez concedes that he is not asserting an as-applied challenge
to § 1326(b), we do not address the Government’s assertion that
any such challenge is barred by Ramirez’s unconditional guilty
plea and by the appeal-waiver provision of Ramirez’s plea
agreement.
Ramirez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ramirez 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). Ramirez 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.