United States v. Betancourt-Ochoa , 169 F. App'x 280 ( 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. 05-41006
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMAS BETANCOURT-OCHOA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-180-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Tomas Betancourt-Ochoa (Betancourt) pleaded guilty to
unlawful presence in the United States following deportation
after having been convicted of an aggravated felony, in violation
of 8 U.S.C. § 1326(a) and (b). The district court sentenced him
to 37 months of imprisonment, to be followed by three years of
supervised release.
Betancourt challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must
*
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this opinion should not be published and is not precedent except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. 05-41006
-2-
be found by a jury. We decline ruling on the applicability of
the waiver provisions in Betancourt’s plea agreement because his
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Betancourt
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). Betancourt 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.