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. 05-41416
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN CABRERA-NINO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-278-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Martin Cabrera-Nino (Cabrera) pleaded guilty to Count 1 of
an indictment charging him with entering the United States
illegally following deportation. Cabrera was sentenced to 46
months of imprisonment. He gave timely notice of his appeal.
Cabrera challenges the constitutionality of 8 U.S.C.
§ 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
*
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this opinion should not be published and is not precedent except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. 05-41416
- 2 -
waiver provision in Cabrera’s plea agreement precludes his attack
on the constitutionality of § 1326(b) and that, as a result of
the waiver, Cabrera lacks standing to challenge the
constitutionality of § 1326(b). We assume, arguendo only, that
the waiver does not bar the instant appeal.
Cabrera’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Cabrera 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). Cabrera
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.