United States v. Rodriguez-Lopez

* 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this opinion should not be published and is not precedent except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 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41187
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO RODRIGUEZ-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-325-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Roberto Rodriguez-Lopez (Rodriguez) appeals his guilty-plea
conviction and sentence for being unlawfully found in the United
States after deportation, having previously been convicted of an
aggravated felony. 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). Rodriguez contends that § 1326(b) must be severed from
the remainder of the statute and his conviction reduced to one
under § 1326(a). The Government argues that the waiver

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No. 05-41187
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provisions in Rodriguez’s plea agreement preclude his attack on
the constitutionality of § 1326(b) and that he lacks standing to
challenge the constitutionality of § 1326(b). We assume,
arguendo only, that the waiver does not bar the instant appeal.
However, Rodriguez cannot succeed in this appeal because his
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Rodriguez
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). Rodriguez 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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