USA v. Borjas-Guerrero, No. 05-40992 (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. 05-40992 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERTO BORJAS-GUERRERO, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-114-ALL -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Roberto Borjas-Guerrero (Borjas) appeals his conviction under 8 U.S.C. § 1326(a) and (b) for illegal reentry into the United States after having been deported following conviction for an aggravated felony. He asserts that the felony and aggravated felony provisions of the statute cause it to be unconstitutional on its face. The Government asserts that waiver language in Borjas s plea agreement bars his appeal. However, we need not decide this issue here, as the underlying constitutional issue raised 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40992 -2precluded by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Borjas contends that Almendarez-Torres was incorrectly decided and that majority of the Supreme Court would overrule it in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Borjas 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 district court s judgment is AFFIRMED.

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