United States v. Juan-Serrano

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. 05-40669 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JESUS DON JUAN-SERRANO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-640-1 -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Jesus Don Juan-Serrano pleaded guilty to illegal reentry after deportation and was sentenced to 57 months of imprisonment and a three-year term of supervised release. For the first time on appeal, Don Juan-Serrano challenges the constitutionality of 8 U.S.C. § 1326(b).

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

Although Don Juan-Serrano contends that Almendarez-Torres was

No. 05-40669 -2- incorrectly 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). Don Juan-Serrano 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.