United States v. Guerrero-Ruiz

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. 05-41232
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO GUERRERO-RUIZ,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-161-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Eduardo Guerrero-Ruiz appeals his guilty plea conviction and

sentence for illegal reentry following deportation in violation

of 8 U.S.C. § 1326. He challenges the constitutionality of

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than as elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).

*
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this opinion should not be published and is not precedent except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. 05-41232
-2-

Guerrero-Ruiz’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Guerrero-Ruiz 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). Guerrero-Ruiz 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.