United States v. Arredondo-Perez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 21, 2006 Charles R. Fulbruge III Clerk No. 05-40941 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE LUIS ARREDONDO-PEREZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-220-ALL -------------------- Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Jose Luis Arredondo-Perez (Arredondo) appeals his conviction and sentence following his guilty plea to being illegally present in this country subsequent to deportation, in violation of 8 U.S.C. § 1326. Arredondo challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Arredondo’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40941 -2- 523 U.S. 224, 235 (1998). Although Arredondo 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). Arredondo 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.