USA v. Cano-Rodriguez

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. 05-40925 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE GUADALUPE CANO-RODRIGUEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-30-ALL -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Jose Guadalupe Cano-Rodriguez (Cano) appeals his guilty plea conviction and sentence for illegal reentry after a previous deportation. 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). We need not decide the applicability of the plea-agreement waivers in this case because the issue that Cano raises is foreclosed. Cano's constitutional challenge is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 235 (1998). * Although Cano 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40925 -2contends 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, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Cano 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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