United States v. Ortega-Gonzalez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 14, 2007 Charles R. Fulbruge III Clerk No. 06-20066 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARMANDO ORTEGA-GONZALEZ, also known as Armando Ortega, also known as Armando Gonzales Ortega, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:05-CR-208-ALL -------------------- Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges. PER CURIAM:* Armando Ortega-Gonzalez (Ortega) appeals his conviction and sentence for violating 8 U.S.C. § 1326 by being present in the United States without permission after deportation. He argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 46-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 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20066 -2- convictions as sentencing factors rather than elements of the offense that must be found by a jury. Ortega’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). Ortega 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.