United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-41393
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEFINA MARTINEZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-419-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Josefina Martinez-Martinez appeals her guilty-plea
conviction and sentence for illegal reentry following deportation
in violation of 8 U.S.C. § 1326. She challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
as elements of the offense that must be found by a jury in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Martinez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
*
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this opinion should not be published and is not precedent except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. 05-41393
-2-
Although 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). Martinez
properly concedes that her argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but she raises it here
to preserve it for further review.
AFFIRMED.