USA v. Duran-Rivera

Filing 920060621

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
June 20, 2006 Charles R. Fulbruge III Clerk

No. 05-40038 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus IVAN ENRIQUE DURAN-RIVERA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-553-ALL -------------------Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Ivan Enrique Duran-Rivera (Duran) appeals following his guilty plea conviction for illegal reentry into the United States. 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). Because

the Government has not invoked the waiver provisions in the plea agreement, the waiver does not bind Duran. Story, 439 F.3d 226, 230-31 (5th Cir. 2006). See United States v.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40038 -2Duran's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Duran 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, Duran

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

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. Because Duran has shown no error

in the judgment of the district court, that judgment is AFFIRMED.