United States v. Hernandez-Esparza

* 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this opinion should not be published and is not precedent except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
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40930
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA ESTER HERNANDEZ-ESPARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2327-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Maria Ester Hernandez-Esparza (Hernandez) appeals her
conviction and sentence for illegal reentry after previous
deportation. She 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).
Hernandez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Hernandez contends that Almendarez-Torres was

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No. 05-40930
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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).
Hernandez properly concedes that her argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but she raises
it here to preserve it for further review.
AFFIRMED.

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