USA v. Juan-Serrano

Filing 920060224

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 24, 2006 Charles R. Fulbruge III Clerk No. 05-40669 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JESUS DON JUAN-SERRANO, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-640-1 -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Jesus Don Juan-Serrano pleaded guilty to illegal reentry after deportation and was sentenced to 57 months of imprisonment and a three-year term of supervised release. For the first time

on appeal, Don Juan-Serrano challenges the constitutionality of 8 U.S.C. § 1326(b). Don Juan-Serrano's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Don Juan-Serrano 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40669 -2incorrectly decided and that a majority of the Supreme Court would 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). Don Juan-Serrano 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.