United States v. Garcia-Arechiga

* 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this opinion should not be published and is not precedent except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
August 25, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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).

-- 1 of 2 --

No. 05-41321
-2-
Although 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 Almendarez-
Torres 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.

-- 2 of 2 --