United States v. Hernandez-Martinez

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. 05-41383
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO HERNANDEZ-MARTINEZ, also known as Santiago
Hernandez-Gonzalez,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-453-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Roberto Hernandez-Martinez appeals his sentence for being

present in the United States after deportation, in violation of

8 U.S.C. § 1326(a) and (b). Hernandez-Martinez 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). The Government

argues that the waiver provision in Hernandez-Martinez’s plea

*
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this opinion should not be published and is not precedent except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. 05-41383
-2-

agreement precludes his attack on the constitutionality of

§ 1326(b). We assume, arguendo only, that the waiver does not

bar the instant appeal.

Hernandez-Martinez’s constitutional challenge is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Hernandez-Martinez 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). Hernandez-Martinez 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.