United States v. Ontiveros-Mendoza

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. 06-40142
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS ONTIVEROS-MENDOZA,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-615-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Jose Luis Ontiveros-Mendoza 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 77-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

the constitutionality of § 1326(b)’s treatment of prior felony

*
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this opinion should not be published and is not precedent except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. 06-40142
-2-

and aggravated felony convictions as sentencing factors rather

than elements of the offense that must be found by a jury.

Ontiveros-Mendoza’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). Ontiveros-

Mendoza 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.