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. 05-41731
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RICARDO GUTIERREZ-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-586-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Juan Ricardo Gutierrez-Garcia (Gutierrez) appeals his
guilty-plea conviction for unlawful reentry in violation of 8
U.S.C. § 1326(b). In his sole issue on appeal, Gutierrez argues
that § 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 is 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this opinion should not be published and is not precedent except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. 05-41731
-2-
Gutierrez’s appeal waiver is not binding because the
Government does not seek to enforce the waiver and has therefore
waived the issue. See United States v. Story, 439 F.3d 226, 230-
31 & n.5 (5th Cir. 2006). Gutierrez’s constitutional argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Gutierrez 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).
Gutierrez 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.