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. 05-40829
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL ANGEL ASCENCIO-CONTRERAS, also known as Rafael
Acencio,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1078-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Rafael Angel Ascencio-Contreras appeals his guilty-plea
conviction and sentence for illegal reentry following deportation
in violation of 8 U.S.C. § 1326. He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
as elements of the offense that must be found by a jury 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this opinion should not be published and is not precedent except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. 05-40829
-2-
Ascencio-Contreras’s constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ascencio-Contreras 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). Ascencio-Contreras 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.