United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-41671
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL PENA-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-996-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Daniel Pena-Ramirez appeals his guilty-plea conviction of,
and sentence for, violating 8 U.S.C. § 1326 by being found in the
United States without permission after deportation. He argues,
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the
70-month term of imprisonment imposed in his case exceeds the
statutory maximum sentence allowed for the § 1326(a) offense
charged in his indictment. He challenges as unconstitutional
both facially and as applied in his case § 1326(b)’s treatment of
prior felony and aggravated felony convictions as sentencing
*
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this opinion should not be published and is not precedent except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. 05-41671
-2-
factors rather than elements of the offense that must be found by
a jury.
Pena-Ramirez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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). Pena-
Ramirez 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.