USA v. Pena-Amaro

Filing 920060223

Opinion

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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 February 23, 2006 Charles R. Fulbruge III Clerk No. 05-40788 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HILARIO PENA-AMARO, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-78-ALL -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Hilario Pena-Amaro (Pena) appeals his conviction 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). Pena's constitutional challenge to § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Pena contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40788 -2Almendarez-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, Pena 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. Accordingly, the judgment of the district court is AFFIRMED.

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