UNITED STATES of America, Plaintiff-Appellee, v. Servando RODRIGUEZ-CUELLAR, Defendant-Appellant, 185 F. App'x 385

PER CURIAM: Servando Rodriguez-Cuellar pleaded guilty to an indictment charging him with being an alien unlawfully found in the United States after deportation following an aggravated-felony conviction. Rodriguez-Cuellar was sentenced to 46 months in prison. He gave timely notice of appeal. Rodriguez-Cuellar challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The Government argues that the waiver provision in Rodriguez-Cuellar’s plea agreement precludes his attack on the constitutionality of § 1326(

b) and that, as a result of the waiver, Rodriguez-Cuellar lacks standing to challenge the constitutionality of § 1326(b). We assume, arguendo only, that the waiver does not bar the instant appeal. Rodriguez-Cuellar’s constitutional challenge to § 1326(b), however, is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Although RodriguezCuellar 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, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Rodriguez-Cuellar 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 judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.