United States v. Lopez-Hernandez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006 Charles R. Fulbruge III Clerk No. 05-40728 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO JAVIER LOPEZ-HERNANDEZ, also known as Francisco Javier Lopez, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-892-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Francisco Javier Lopez-Hernandez appeals his guilty-plea conviction and sentence for unlawful presence in the United States following deportation. He argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Government seeks enforcement of the waiver provisions in Lopez-Hernandez’s plea agreement. We decline ruling on the No. 05-40728 -2- applicability of the waivers because his constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Lopez-Hernandez 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). Lopez-Hernandez 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.