United States v. Capetillo-Rivera , 203 F. App'x 644 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 06-40228
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO ANTONIO CAPETILLO-RIVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-743-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Marco Antonio Capetillo-Rivera appeals his guilty-plea
conviction of, and sentence for, violating 8 U.S.C. § 1326 by
being found 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
*
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this opinion should not be published and is not precedent except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. 06-40228
-2-
and aggravated felony convictions as sentencing factors rather
than elements of the offense that must be found by a jury.
Capetillo-Rivera’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). Capetillo-
Rivera 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.