United States v. Esquivel-Huerta

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 20, 2006 Charles R. Fulbruge III Clerk No. 05-41459 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OLEGARIO ESQUIVEL-HUERTA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-245-ALL -------------------- Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:* Olegario Esquivel-Huerta appeals his guilty plea conviction and sentence for being unlawfully present in the United States after deportation following an aggravated felony conviction. 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), and he contends that his challenge is not barred by the appeal-waiver provision in his plea agreement. The Government seeks enforcement of the waiver

No. 05-41459 -2- provision. We assume, arguendo only, that the waiver does not bar the instant appeal.

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

Although Esquivel-Huerta 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).

Esquivel-Huerta 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.