United States v. Boche , 168 F. App'x 666 ( 2006 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 05-20275 FILED
Conference Calendar
February 24, 2006
Charles R. Fulbruge III
UNTIED STATES OF AMERICA, Clerk
Plaintiff-Appellee,
versus
BRENDA CAROLINA BOCHE,
also known as Maria De Los Angeles Paz-Lopez,
also known as Brenda Pereles,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-381-ALL
-------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Brenda Carolina Boche was convicted, following a bench trial
on stipulated facts, of being illegally present in the United
States after deportation following an aggravated felony
conviction. Boche was sentenced to a 55-month term of
imprisonment.
For the first time on appeal, Boche challenges the
constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior
*
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this opinion should not be published and is not precedent except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. 05-20275
-2-
felony and aggravated felony convictions as sentencing factors
rather than elements of the offense that must be found by a jury
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Boche
contends that her conviction should be reduced to one under
8 U.S.C. § 1326(a)(2) and the judgment reformed to reflect
conviction only under that provision.
Boche’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Boche 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). Boche
properly concedes that her argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but she raises it here
to preserve it for further review.
The judgment of the district court is AFFIRMED.