United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-41585
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALBERTO CANALES-MATUTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-468-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Jose Alberto Canales-Matute appeals his guilty plea
conviction and sentence for being unlawfully found in the United
States after deportation following an aggravated felony
conviction. He 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 the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). The Government contends that
Canales-Mutate’s challenge is barred by the appeal-waiver
*
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this opinion should not be published and is not precedent except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. 05-41585
-2-
provision in his plea agreement. The Government seeks
enforcement of the waiver provision.
We assume, arguendo only, that the waiver does not bar the
instant appeal. Canales-Matute’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Canales-Matute 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). Canales-Matute 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.