USA vs. Esquivel-Huerta, (5th Cir. 2006)

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United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

June 20, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-41459

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OLEGARIO ESQUIVEL-HUERTA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:05-CR-245-ALL

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:* Olegario Esquivel-Huerta appeals his guilty plea conviction and sentence for being unlawfully present in the United States after deportation following an aggravated felony conviction. He argues that the "felony" and "aggravated felony" provisions of 8U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and he contends that his challenge is not barred by the appeal-waiver provision in his plea agreement. The Government seeks enforcement of the waiver * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. provision. We assume, arguendo only, that the waiver does not bar the instant appeal.

Esquivel-Huerta's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Esquivel-Huerta 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).

Esquivel-Huerta 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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