United States v. Martinez-Figueroa

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006 Charles R. Fulbruge III Clerk No. 05-40756 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NAUN MARTINEZ-FIGUEROA, also known as Nahum Martinez, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-993-ALL -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Naun Martinez-Figueroa pleaded guilty to being found in the United States after previous deportation and was sentenced to 37 months of imprisonment and three years of supervised release. Martinez-Figueroa argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. Specifically, he argues that the viability of Almendarez-Torres v. United States, 523 U.S. 224 (1998), is in doubt in light of later Supreme Court cases. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40756 -2- Martinez-Figueroa’s constitutional challenge is foreclosed by Almendarez-Torres. Although Martinez-Figueroa 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 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- Figueroa 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.