United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41569
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SOFIA MARISOL LANDIN-MARTINEZ,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-884-ALL
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Sofia Marisol Landin-Martinez (Landin) appeals her guilty-plea conviction of, and 41-month
sentence for, violating 8 U.S.C. § 1326 by being found in the United States without permission after
deportation. Landin argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 41-
month term of imprisonment imposed in her case exceeds the statutory maximum sentence allowed
for the § 1326 offense charged in her indictment. She challenges the constitutionality of § 1326(b)’s
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements
of the offense that must be found by a jury.
Landin’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). This court has repeatedly rejected the argument raised by Landin on the basis
that Almendarez-Torres remains binding despite Apprendi. See United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Landin acknowledges that her
argument is unavailing in light of Almendarez-Torres, but she raises it here to preserve it for further
review.
AFFIRMED.
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