USA v. Cruz-Sanchez, No. 05-41577 (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 December 12, 2006 Charles R. Fulbruge III Clerk No. 05-41577 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROGELIO CRUZ-SANCHEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1534-ALL -------------------Before KING, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Rogelio Cruz-Sanchez appeals his conviction and sentence following his guilty plea for being an alien attempting to illegally reenter the United States after deportation. Cruz- Sanchez argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. Cruz-Sanchez s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Cruz-Sanchez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41577 -2would overrule Almendarez-Torres 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). Cruz-Sanchez 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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