United States v. Ordones-Ferruzca

* 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this opinion should not be published and is not precedent except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. 05-41216
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ORDONES-FERRUZCA, also known as Rafael Ornelas-Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-309-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jesus Ordones-Ferruzca (Ordones) appeals from his conviction
of being illegally present in the United States after having been
deported. He challenges the constitutionality of the “felony”
and “aggravated felony” provisions of 8 U.S.C. § 1326(b), and he
contends that his challenge is not barred by the appeal-waiver
provision of his plea agreement. The Government seeks
enforcement of the waiver provision. Because Ordones’s

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No. 05-41216
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substantive contention is foreclosed, we need not address whether
to enforce the waiver provision.
The constitutional issue raised by Ordones is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ordones 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). Ordones 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.
The district court’s judgment is AFFIRMED.

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