United States v. Avalos-Cortez

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. 05-40733 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RIGOBERTO AVALOS-CORTEZ, also known as Rigoberto Cortez-Avalos, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-38-ALL -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Rigoberto Avalos-Cortez appeals his conviction and sentence for illegal reentry after a previous deportation. Avalos- Cortez’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Avalos-Cortez contends that Almendarez-Torres was 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 No. 05-40733 -2- 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). Avalos- Cortez 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.