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. 05-40963
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SANTIAGO SANCHEZ-HERRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-144-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Santiago Sanchez-Herrera appeals his conviction and
sentence for illegal reentry into the United States after
deportation following a conviction for an aggravated felony. The
Government seeks to dismiss Sanchez-Herrera’s appeal as barred by
the appellate waiver provision in his plea agreement.
Sanchez-Herrera’s conviction was pursuant to a written plea
agreement. In the agreement, Sanchez-Herrera waived the right to
have facts that the law makes essential to the punishment either
charged in the indictment, proven to a jury, or proven beyond a
*
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this opinion should not be published and is not precedent except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. 05-40963
-2-
reasonable doubt. Sanchez-Herrera also waived the right to
appeal his sentence, but reserved the right to appeal a sentence
in excess of the statutory maximum sentence. We assume, arguendo
only, that the waiver does not bar the instant appeal.
Sanchez-Herrera cannot succeed in this appeal, however,
because his constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Sanchez-Herrera 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). Sanchez-Herrera 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.