United States v. Montano-Lara , 170 F. App'x 901 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 16, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-50570
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICARDO MONTANO-LARA,
Defendant-Appellant.
––––––––––––––
Appeal from the United States District Court
for the Western District of Texas
No. 2:04-CR-698-ALL-WWJ
––––––––––––––
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Ricardo Montano-Lara appeals from his guilty-plea conviction for illegal reentry into the
United States. He argues that the district court misunderstood its sentencing discretion under United
States v. Booker, 543 U.S. 220 (2005). He concedes that, because he failed to object on this basis
in district court, this issue is reviewed only for plain error. Examination of the sentencing transcript
does not indicate that the district court failed to recognize its proper role in the post-Booker
sentencing scheme. Accordingly, Montano-Lara has not shown plain error on this basis.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-50570
-2-
Montano-Lara’s constitutional challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Montano-Lara 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). Montano-Lara 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.
Accordingly, the district court’s judgment is AFFIRMED.