United States v. Boche

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

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.