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. 05-41849
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RAFAEL HERNANDEZ-URIBE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-598-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Juan Rafael Hernandez-Uribe appeals his guilty-plea
conviction for unlawful reentry in violation of 8 U.S.C.
§ 1326(b). In his sole issue on appeal, Hernandez-Uribe 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this opinion should not be published and is not precedent except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. 05-41849
-2-
Hernandez-Uribe’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Hernandez-Uribe 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-Uribe 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.