United States v. Martinez-Trevino , 147 F. App'x 433 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-41596
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA ISABEL MARTINEZ-TREVINO,
also known as Isabel Maria Martinez-Trevino,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1176-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Maria Isabel Martinez-Trevino (“Martinez”) appeals her
conviction and sentence for illegal reentry after a previous
deportation. She argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Martinez raises an issue that she concedes is
foreclosed, but she seeks to preserve it for further review.
*
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this opinion should not be published and is not precedent except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. 04-41596
-2-
This argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). The
Supreme Court’s decisions in Blakely v. Washington, 124 S. Ct.
2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005),
did not overrule Almendarez-Torres. See Booker, 125 S. Ct. at
756; Blakely, 124 S. Ct. at 2536-43. This court does not have
the authority to overrule Almendarez-Torres. See Dabeit, 231
F.3d at 984. Accordingly, Martinez’s conviction and sentence are
AFFIRMED.