United States v. Martinez-Herrera

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 24, 2006 Charles R. Fulbruge III Clerk No. 05-40483 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MIGUEL MARTINEZ-HERRERA, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2015-ALL -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Miguel Martinez-Herrera (Martinez) appeals his sentence under 8 U.S.C. § 1326(a) and (b) for illegal reentry into the United States after having been deported following conviction for an aggravated felony. Martinez asserts that the “felony” and “aggravated felony” provisions of § 1326(b) are facially unconstitutional. The constitutional issue raised is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224, 235 (1998). Although * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40483 -2- Martinez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule it in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Martinez 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 district court’s judgment is AFFIRMED.