United States v. Hernandez-Mendez

United States Court of Appeals Fifth Circuit F I L E D REVISED JUNE 22, 2006 June 21, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-41001 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAIME HERNANDEZ-MENDEZ, also known as Ramon Martinez-Mendez, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-454-ALL -------------------- Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:* Jamie Hernandez-Mendez appeals his guilty plea conviction and sentence for illegal reentry following deportation.

Hernandez-Mendez argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

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

No. 05-41001 -2- Although Hernandez-Mendez 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). Hernandez-Mendez 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.