United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-40700
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACINTO BARTOLO-CARBAJAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2247
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Jacinto Bartolo-Carbajal (Bartolo) appeals his conviction
and sentence following his guilty plea to being illegally present
in this country subsequent to deportation, in violation of
8 U.S.C. § 1326. For the first time on appeal, Bartolo
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).
Bartolo’s constitutional challenge is foreclosed by
*
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this opinion should not be published and is not precedent except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. 05-40700
-2-
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Bartolo 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). Bartolo
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.