USA v. Barraza-Perez
Filing
920060411
Opinion
United States Court of Appeals Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
F I L E D
April 11, 2006 Charles R. Fulbruge III Clerk
No. 05-41092 Conference Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MIGUEL BARRAZA-PEREZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-84-1 -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Miguel Barraza-Perez appeals following his guilty plea conviction for illegal reentry into the United States. 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). Because the Government has
not invoked the waiver provisions in the plea agreement, the waiver does not bind Barraza-Perez. 439 F.3d 226, 230-31 (5th Cir. 2006). See United States v. Story,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41092 -2Barraza-Perez's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Barraza-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 Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Barraza-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. Because Barraza-Perez has shown no error in the judgment
of the district court, that judgment is AFFIRMED.
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