United States v. Andrade ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-41040
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO ANDRADE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-56-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Jose Antonio Andrade was convicted of being unlawfully
present in the United States following a prior deportation. He
was sentenced to 63 months of imprisonment and a three-year term
of supervised release. The Government seeks enforcement of the
waiver provisions in Andrade’s plea agreement. We need not
decide the applicability of the waiver provisions in this case
because the issue that Andrade raises is foreclosed.
*
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this opinion should not be published and is not precedent except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.
No. 05-41040
-2-
In his sole issue on appeal, Andrade renews his argument
that 8 U.S.C. § 1326 is facially unconstitutional because it
treats prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must
be found by a jury in light of Apprendi v. New Jersey, 530 U.S.
466 (2000).
Andrade’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Andrade 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). Andrade
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.