USA v. Rodriguez-Juarez
United States Court of Appeals Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
F I L E D
April 12, 2006 Charles R. Fulbruge III Clerk
No. 05-41223 Conference Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BENJAMIN RODRIGUEZ-JUAREZ, also known as Luis Hernandez-Rodriguez, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-315-ALL -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Benjamin Rodriguez-Juarez (Rodriguez) appeals his guiltyplea conviction for unlawful presence in the United States following 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).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41223 -2His constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Rodriguez 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). Rodriguez 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.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?