USA v. Benitez-Delgado

Filing 920060412

Opinion

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United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT F I L E D April 12, 2006 Charles R. Fulbruge III Clerk No. 05-40638 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RUBEN ARISTIDES BENITEZ-DELGADO, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-787-1 -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Ruben Aristides Benitez-Delgado (Benitez) appeals his conviction and 24-month sentence for illegal reentry by an alien after deportation. He argues that the provisions of 8 U.S.C. 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Benitez's constitutional challenge to 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Benitez contends that Almendarez-Torres was 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40638 -2incorrectly 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 AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Benitez 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. Accordingly, the judgment of the district court is AFFIRMED.

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