USA v. Garcia-Arechiga

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. 05-41321 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FIDEL GARCIA-ARECHIGA, also known as Herberto Rodriguez, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-157-ALL -------------------Before DAVIS, SMITH, and WIENER, Circuit Judges. PER CURIAM:* Fidel Garcia-Arechiga appeals his guilty-plea conviction and sentence for illegal reentry into the United States after a previous deportation. He 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). Garcia-Arechiga's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41321 -2Although Garcia-Arechiga 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). Garcia-Arechiga 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.