United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-41160
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL MARTINEZ-FERRER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-165-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Miguel Angel Martinez-Ferrer appeals his sentence for
illegal reentry into the United States following deportation, in
violation of 8 U.S.C. § 1326(a) and (b). Through a letter mailed
to the clerk of this court after appointed counsel had filed an
appellate brief, Martinez-Ferrer moved to discharge appellate
counsel, appoint new counsel, and amend his appellate brief. He
also sought to stay this court’s ruling on his appeal pending the
resolution of his motion. As Martinez-Ferrer filed his motions
*
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this opinion should not be published and is not precedent except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. 05-41160
-2-
after counsel had filed an appellate brief, the motions are
denied as untimely. See United States v. Wagner, 158 F.3d 901,
902-03 (5th Cir. 1998).
The Government seeks to dismiss Martinez-Ferrer’s appeal as
barred by the appellate waiver provision in his plea agreement.
We need not decide whether the waiver precludes consideration of
the instant appeal, however, as Martinez-Ferrer’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Martinez-Ferrer 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-Ferrer 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.
MOTIONS DENIED; AFFIRMED.