United States v. Ruiz-Diaz

* 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this opinion should not be published and is not precedent except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. 05-41407
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO RUIZ-DIAZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-213-ALL
--------------------
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Eduardo Ruiz-Diaz (Ruiz) appeals his guilty-plea conviction
and sentence for illegal reentry of a deported alien following an
aggravated felony conviction. Ruiz argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(b)(2) are unconstitutional.
Ruiz’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ruiz contends that Almendarez-Torres was incorrectly

-- 1 of 2 --

No. 05-41407
-2-
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). Ruiz 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 --