United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-41847
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IGNACIO HERNANDEZ-BELTRAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-577
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Ignacio Hernandez-Beltran appeals his guilty plea conviction
and sentence for being unlawfully present in the United States
after deportation following an aggravated felony conviction. 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), and contends that
his challenge is not barred by the appeal-waiver provision in his
*
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this opinion should not be published and is not precedent except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. 05-41847
-2-
plea agreement. The Government seeks enforcement of the waiver
provision.
We assume, arguendo only, that the waiver does not bar the
instant appeal. Although Hernandez-Beltran contends that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), 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-Beltran 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.