United States v. Torres-Luna

* 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this opinion should not be published and is not precedent except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
October 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41828
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSENDO TORRES-LUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-606
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Rosendo Torres-Luna (Torres) appeals his guilty-plea
conviction and sentence for being an alien found unlawfully in
the United States after deportation and following an aggravated
felony conviction. Torres argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2)
are unconstitutional. Torres also asserts that his appeal is not
barred by the waiver-of-appeal provision in his plea agreement.
The Government argues that the waiver bars the appeal.

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No. 05-41828
-2-
We assume, arguendo only, that the waiver does not bar the
instant appeal. Torres’s constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Torres 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). Torres 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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