United States v. Herrera-Perez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 24, 2006 Charles R. Fulbruge III Clerk No. 05-40645 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus INOCENCIO HERRERA-PEREZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-1088-ALL -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Inocencio Herrera-Perez (Herrera) appeals his guilty-plea conviction and sentence for being found unlawfully in the United States after previously being deported. Herrera argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

Herrera’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Herrera contends that Almendarez-Torres was incorrectly

No. 05-40645 -2- decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Herrera 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.