United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-40451
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO PATINO-TARIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-803-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Rodolfo Patino-Tarin appeals from his guilty-plea conviction
and sentence for being found in the United States after previous
deportation. Patino-Tarin argues that the district court erred
by imposing a 16-level adjustment under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based upon his Texas conviction for burglary
of a habitation. Because he objected on this basis in the
district court, this issue is reviewed de novo. United States v.
Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc).
*
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this opinion should not be published and is not precedent except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. 05-40451
-2-
Patino-Tarin’s argument is unavailing. See United States v.
Garcia-Mendez, 420 F.3d 454, 455-57 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1398 (2006).
Patino-Tarin’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Patino-Tarin 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). Patino-Tarin 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.
Accordingly, the district court’s judgment is AFFIRMED.