United States v. Baena-Aguilar

* 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this opinion should not be published and is not precedent except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
February 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40976
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DE JESUS BAENA-AGUILAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-115-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose De Jesus Baena-Aguilar (Baena) appeals his illegal
reentry conviction, challenging the constitutionality of 8 U.S.C.
§ 1326(b)(1), (2). Baena’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Baena 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

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No. 05-40976
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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). Baena 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.

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