United States v. Meraz-Lares

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 06-40082
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO MERAZ-LARES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-573
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Francisco Meraz-Lares (Meraz) pleaded guilty to an
indictment charging him with being found illegally in the United
States following a previous deportation. Meraz contends that the
“felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) & (2) are unconstitutional, in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), because those provisions treat
prior convictions as sentencing factors rather than elements of
an offense. The Government contends that Meraz waived the right
*
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this opinion should not be published and is not precedent except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. 06-40082
-2-
to assert this question in his plea agreement. We assume,
arguendo only, that the waiver does not bar the instant appeal.
Meraz’ constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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). Meraz
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.