USA v. Ramirez-Perez

Filing 920060825

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 25, 2006 Charles R. Fulbruge III Clerk No. 05-41008 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MANUEL DE JESUS RAMIREZ-PEREZ, also known as Antonio Garcia-Garcia, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-180-ALL -------------------Before DAVIS, SMITH, and WIENER, Circuit Judges. PER CURIAM:* Manuel De Jesus Ramirez-Perez (Ramirez-Perez) appeals his conviction and 70-month sentence for illegal reentry of a deported alien. Ramirez-Perez argues that the "felony" and

"aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41008 -2Ramirez-Perez's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Ramirez-Perez 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 AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410

F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Ramirez-Perez 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.