United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-40380
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS AMAYA-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-525-ALL
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Carlos Amaya-Martinez appeals his conviction and
sentence for illegal reentry pursuant to 8 U.S.C. § 1326(a), (b).
Amaya-Martinez argues that the district court erred in enhancing
his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his
prior Texas robbery conviction under TEX. PENAL CODE ANN. § 29.02
(Vernon 1999). He also argues that the enhancement provisions of
8 U.S.C. § 1326(b) are unconstitutional.
Robbery is expressly listed as a crime of violence in the
commentary to § 2L1.2. See § 2L1.2, comment.(n.1(b)(iii)).
*
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this opinion should not be published and is not precedent except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. 06-40380
-2-
We recently held in United States v. Santiesteban-Hernandez,
469 F.3d 376, 378-82 (5th Cir. 2006), that the Texas offense of
robbery under § 29.02 qualifies as the enumerated offense of
robbery for purposes of § 2L1.2. Amaya-Martinez’s arguments are
almost identical to the arguments made in Santiesteban-Hernandez
and therefore provide no basis for relief.
Amaya-Martinez’s constitutional challenge to § 1326(b) 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 v. New
Jersey, 530 U.S. 466 (2000), 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). Amaya-Martinez 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.
The judgment of the district court is AFFIRMED.