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. 05-41308
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERVANDO RODRIGUEZ-CUELLAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-328-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Servando Rodriguez-Cuellar pleaded guilty to an indictment
charging him with being an alien unlawfully found in the United
States after deportation following an aggravated-felony
conviction. Rodriguez-Cuellar was sentenced to 46 months in
prison. He gave timely notice of appeal.
Rodriguez-Cuellar challenges the constitutionality of
8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of
*
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this opinion should not be published and is not precedent except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. 05-41308
-2-
the offense that must be found by a jury in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). The Government argues that the
waiver provision in Rodriguez-Cuellar’s plea agreement precludes
his attack on the constitutionality of § 1326(b) and that, as a
result of the waiver, Rodriguez-Cuellar lacks standing to
challenge the constitutionality of § 1326(b). We assume,
arguendo only, that the waiver does not bar the instant appeal.
Rodriguez-Cuellar’s constitutional challenge to § 1326(b),
however, is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Rodriguez-Cuellar 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). Rodriguez-Cuellar 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. The judgment of the district court is AFFIRMED.