United States v. Pena-Ramirez , 203 F. App'x 669 ( 2006 )


Menu:
  •                                                        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. 05-41671
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    DANIEL PENA-RAMIREZ,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 5:05-CR-996-ALL
    --------------------
    Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
    PER CURIAM:*
    Daniel Pena-Ramirez 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
    70-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 as unconstitutional
    both facially and as applied in his case § 1326(b)’s treatment of
    prior felony and aggravated felony convictions as sentencing
    *
    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    this opinion should not be published and is not precedent except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. 05-41671
    -2-
    factors rather than elements of the offense that must be found by
    a jury.
    Pena-Ramirez’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).   Pena-
    Ramirez 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.
    

Document Info

Docket Number: 05-41671

Citation Numbers: 203 F. App'x 669

Judges: DeMOSS, Jolly, Per Curiam, Stewart

Filed Date: 10/25/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023