United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-40510
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTIAN ALFREDO PRADO-VASQUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-766-ALL
--------------------
Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Christian Alfredo Prado-Vasquez appeals his guilty-plea
conviction of, and sentence for, violating 8 U.S.C. § 1326 by
attempting to enter the United States without permission after
deportation. He argues, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 46-month term of imprisonment
imposed in his case exceeds the statutory maximum sentence
allowed for the § 1326(a) offense charged in his indictment.
He challenges the constitutionality of § 1326(b)’s treatment of
prior felony and aggravated felony convictions as sentencing
*
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this opinion should not be published and is not precedent except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. 06-40510
-2-
factors rather than elements of the offense that must be found by
a jury.
Prado-Vasquez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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). Prado-
Vasquez 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. The judgment of the
district court is AFFIRMED.