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. 05-41739
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO HUMBERTO IBARRA-PEREZ, also known as
Hugo Ibarra-Perez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-565-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Hugo Humberto Ibarra-Perez (Ibarra) appeals his guilty plea
conviction and sentence for reentry after deportation following a
conviction for an aggravated felony. He contends that the
“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional. The Government does not seek to enforce
Ibarra’s appeal waiver; therefore, it is nonbinding. See United
States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
*
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this opinion should not be published and is not precedent except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. 05-41739
-2-
Ibarra’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ibarra 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). Ibarra 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.