United States v. Ortiz-Arozena

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. 05-40666 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAVIER ORTIZ-AROZENA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-911-1 -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Javier Ortiz-Arozena appeals his guilty-plea conviction for being an alien present in the United States after deportation.

The district court sentenced Ortiz to sixty-two months of imprisonment to be followed by a three-year term of supervised release. He challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior 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).

No. 05-40666 -2- Ortiz’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Ortiz 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). Ortiz 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.