United States v. Carmon-Nieves

* 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this opinion should not be published and is not precedent except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. 05-41783
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADOLFO CARMON-NIEVES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-381-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Adolfo Carmon-Nieves (Carmon) challenges his guilty-plea
conviction and 27-month sentence for illegal reentry. Carmon
contends 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).
Carmon’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Carmon contends that Almendarez-Torres was incorrectly

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No. 05-41783
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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). Carmon
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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