United States v. Herrera-Martinez

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. 05-40748 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN HERRERA-MARTINEZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2586-1 -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Juan Herrera-Martinez (Herrera) pleaded guilty to one count of illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326. In his sole point of error on appeal, Herrera challenges the constitutionality of § 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 (2000). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40748 -2- Herrera’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Herrera 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). Herrera 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.