United States v. Pena-Garza

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 11, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41156
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALFREDO PENA-GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-192-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Jose Alfredo Pena-Garza appeals his guilty plea conviction
and sentence for illegal reentry after having been previously
deported following a prior aggravated felony conviction. 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) and contends that his
challenge is not barred by the appeal-wavier provision in his
plea agreement. The Government seeks enforcement of the waiver

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No. 05-41156
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provision. We need not decide the applicability of the waiver
language in Pena-Garza’s plea agreement because the only issue
that Pena-Garza raises is foreclosed.
Although Pena-Garza contends that Almendarez-Torres v.
United States, 523 U.S. 224 (1998), 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). Pena-Garza 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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