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. 05-41592
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO HERNANDEZ-ROMERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-480-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Rogelio Hernandez-Romero (Hernandez) appeals his guilty-plea
conviction and sentence for unlawfully reentering the United
States after deportation, having previously been convicted of an
aggravated felony. Hernandez was sentenced to 37 months of
imprisonment, to be followed by a three-year term of supervised
release. He argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
*
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this opinion should not be published and is not precedent except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. 05-41592
-2-
Hernandez’s conviction was pursuant to a plea agreement
which contained several waivers, including a waiver of the right
to appeal his sentence, but he reserved the right to appeal a
sentence above the statutory maximum or an upward departure from
the Sentencing Guidelines. The Government argues that some of
the waiver provisions in Hernandez’s plea agreement preclude his
attack on the constitutionality of § 1326(b). The Government
argues that as a result of the waivers, Hernandez lacks standing
to challenge the constitutionality of § 1326(b).
We assume, arguendo only, that the waiver does not bar the
instant appeal. Hernandez cannot succeed in this appeal because
his constitutional challenge is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998). Although Hernandez
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). Hernandez 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 Government’s motion to dismiss the appeal is DENIED, and
the ruling of the district court is AFFIRMED.