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. 05-41119
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOLANDA REYNA-RIOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-53-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Yolanda Reyna-Rios appeals from her guilty plea conviction
for attempted illegal entry into the United States after
deportation following an aggravated-felony conviction. She
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).
The Government argues that the waiver provision in Reyna-
Rios’s plea agreement precludes her attack on the
*
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this opinion should not be published and is not precedent except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. 05-41119
-2-
constitutionality of § 1326(b). We assume, arguendo only, that
the waiver does not bar the instant appeal.
Reyna-Rios’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Reyna-Rios 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).
Reyna-Rios properly concedes that her argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but she raises
it here to preserve it for further review.
AFFIRMED.