United States v. Martinez-Herrera , 168 F. App'x 678 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-40483
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL MARTINEZ-HERRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2015-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Miguel Martinez-Herrera (Martinez) appeals his sentence
under 8 U.S.C. § 1326(a) and (b) for illegal reentry into the
United States after having been deported following conviction for
an aggravated felony. Martinez asserts that the “felony” and
“aggravated felony” provisions of § 1326(b) are facially
unconstitutional.
The constitutional issue raised is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although
*
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this opinion should not be published and is not precedent except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. 05-40483
-2-
Martinez contends that Almendarez-Torres was incorrectly decided
and that a majority of the Supreme Court would overrule it 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).
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 district court’s judgment is AFFIRMED.