United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-40801
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILMAN ARGUETA-FERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-973-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Gilman Argueta-Fernandez appeals his conviction and sentence
for unlawful presence in the United States after deportation
following an aggravated felony conviction. Argueta-Fernandez
argues that the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Argueta-Fernandez’s constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
*
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this opinion should not be published and is not precedent except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. 05-40801
-2-
Although Argueta-Fernandez 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).
Argueta-Fernandez 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.