United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 21, 2007
Charles R. Fulbruge III
Clerk
No. 06-50659
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO CARDENAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-85-ALL
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alejandro Cardenas appeals his sentence of two concurrent
80-month terms of imprisonment imposed for his guilty-plea
conviction of importation of marijuana and possession with the
intent to distribute marijuana. Cardenas challenges the
constitutionality of the treatment of his prior drug convictions
as sentencing factors rather than offense elements that must be
found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466
(2000).
*
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this opinion should not be published and is not precedent except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. 06-50659
-2-
Cardenas’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Cardenas contends that Almendarez-Torres was incorrectly decided
and a majority of the current Court would overrule it in the
light of Apprendi and subsequent Supreme Court authority.
We have repeatedly rejected such contentions because
Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126
S. Ct. 298 (2005). Cardenas properly concedes that his argument
is foreclosed in light of Almendarez-Torres, but he raises it
here to preserve it for further review.
Cardenas also argues that the district court committed plain
error by failing to ask whether he affirmed or denied his prior
convictions, as required by 21 U.S.C. § 851(b). Because Cardenas
has not alleged that he did not commit the prior offenses or that
the convictions were unconstitutionally obtained, he has not
shown plain error. See United States v. Thomas, 348 F.3d 78,
86-87 (5th Cir. 2003).
AFFIRMED.