United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-20929
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO RAMIREZ-GUERRERO, also known as Roberto Ramirez,
also known as Jose Isreal Herrera, also known as Roberto
Rodrigo Ramirez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-118-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Roberto Ramirez-Guerrero pleaded guilty to one count of
unlawfully reentering the United States after having been removed
subsequent to an aggravated felony conviction in violation of
8 U.S.C. § 1326. In his sole point of error on appeal, Ramirez-
Guerrero challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must
*
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this opinion should not be published and is not precedent except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. 05-20929
-2-
be found by a jury in light of Apprendi v. New Jersey, 530 U.S.
466 (2000).
Ramirez-Guerrero’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ramirez-Guerrero 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).
Ramirez-Guerrero properly concedes that his argument is
foreclosed in light of Almendarez-Torres, but he raises it here
to preserve it for further review.
AFFIRMED.