USA v. Estrada-Ramirez, No. 04-41604 (5th Cir. 2006)

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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. 04-41604 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RENE ROLANDO ESTRADA-RAMIREZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-556-ALL -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Rene Rolando Estrada-Ramirez (Estrada) appeals his guilty-plea conviction and sentence for illegal reentry after a previous 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 provision in Estrada s plea agreement. We need not decide the applicability of the waiver in this case because this issue is * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 04-41604 -2foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Estrada 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). Estrada 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.

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