United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40670
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORENZO AMAYA-REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-604-1
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Lorenzo Amaya-Reyes appeals his guilty-plea conviction and
sentence for being unlawfully found in the United States after
deportation, having previously been convicted of an aggravated
felony. He argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
In his plea agreement, Amaya-Reyes waived “any right to have
facts that the law makes essential to the punishment either
*
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this opinion should not be published and is not precedent except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. 05-40670
-2-
(1) charged in the indictment or (2) proven to a jury or (3)
proved beyond a reasonable doubt.” The Government seeks
enforcement of the waiver, arguing that it precludes Amaya-
Reyes’s argument on appeal. We assume, arguendo only, that the
waiver does not bar the instant appeal.
Amaya-Reyes’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Amaya-Reyes contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, 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). Amaya-Reyes 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.