United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-51144
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN NUNEZ-GONZALEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-2306-ALL
--------------------
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Martin Nunez-Gonzalez 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. Nunez-
Gonzalez’s motion for appointment of substitute counsel is denied
because Nunez-Gonzalez has not shown “a conflict of interest or
other most pressing circumstances or that the interests of
justice otherwise require relief of counsel.” Fifth Circuit Plan
under the Criminal Justice Act § 5(B).
*
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this opinion should not be published and is not precedent except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. 05-51144
-2-
Nunez-Gonzalez argues, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 37-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 and aggravated felony convictions as sentencing
factors rather than elements of the offense that must be found by
a jury.
Nunez-Gonzalez’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). Nunez-
Gonzalez 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. Accordingly, the
Government’s motion for summary affirmance is granted.
MOTION FOR APPOINTMENT OF SUBSTITUTE COUNSEL DENIED; MOTION
FOR SUMMARY AFFIRMANCE GRANTED; AFFIRMED.