United States v. Ipina-Ipina

* 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this opinion should not be published and is not precedent except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. 05-41264
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SAMUEL IPINA-IPINA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1015-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Samuel Ipina-Ipina pleaded guilty to being found in the
United States after previous deportation and was sentenced to 57
months of imprisonment and two years of supervised release.
Ipina-Ipina argues that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
Specifically, he argues that the viability of Almendarez-Torres
v. United States, 523 U.S. 224 (1998), is in doubt in light of
later Supreme Court cases.

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No. 05-41264
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Ipina-Ipina contends that the waiver provision contained in
paragraph 2 of his plea agreement does not bar his ability to
raise this issue on appeal. The Government states that there was
no waiver of appellate rights in the plea agreement. The
Government’s position is consistent with this court’s
interpretation of this waiver provision. See United States v.
Reyes-Celestino, 443 F.3d 451, 452 (5th Cir. 2006). Further,
because the Government does not seek to enforce the waiver in
this case, it will not be considered. See United States v. Lang,
440 F.3d 212, 213 (5th Cir. 2006).
Ipina-Ipina’s constitutional challenge is foreclosed by
Almendarez-Torres. Although Ipina-Ipina contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Ipina-Ipina
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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