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. 05-41486
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADOLFO GONZALEZ-RIVAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-772-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Adolfo Gonzalez-Rivas (Gonzalez) appeals his guilty plea
conviction and 60-month sentence for illegally reentering the
United States after having been deported previously.
Gonzalez challenges the constitutionality of 8 U.S.C.
§ 1326(b). Gonzalez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Gonzalez contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
*
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this opinion should not be published and is not precedent except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. 05-41486
-2-
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). Gonzalez 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.
Accordingly, the judgment of the district court is AFFIRMED.