United States v. Martinez-Figueroa , 169 F. App'x 262 ( 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 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40756
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NAUN MARTINEZ-FIGUEROA, also known as Nahum Martinez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-993-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Naun Martinez-Figueroa pleaded guilty to being found in the
United States after previous deportation and was sentenced to 37
months of imprisonment and three years of supervised release.
Martinez-Figueroa argues that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
Specifically, he argues that the viability of Almendarez-Torres
v. United States, 523 U.S. 224 (1998), is in doubt in light of
later Supreme Court cases.
*
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this opinion should not be published and is not precedent except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. 05-40756
-2-
Martinez-Figueroa’s constitutional challenge is foreclosed
by Almendarez-Torres. Although Martinez-Figueroa 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). Martinez-
Figueroa 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.