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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-208-ALL
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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this opinion should not be published and is not precedent except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.