United States v. Barbosa-Cantu

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-41732
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRACIELA BARBOSA-CANTU,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-594
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Graciela Barbosa-Cantu (Barbosa) appeals her conviction and
68-month sentence for illegal reentry following deportation. She
argues that the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Barbosa contends
that her plea agreement, which contained a waiver-of-appeal
provision, does not bar this appeal because she is challenging
the constitutionality of the statute of conviction and her
sentence is in excess of the statutory maximum. The Government
*
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this opinion should not be published and is not precedent except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. 05-41732
-2-
seeks to enforce the appeal waiver. We assume, arguendo only,
that the waiver does not bar the instant appeal.
Barbosa’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Barbosa 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). Barbosa
properly concedes that her argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but she raises it here
to preserve it for further review. Because Barbosa has shown no
error in the judgment of the district court, that judgment is
AFFIRMED.