United States v. Martinez-Mendoza

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. 05-40916 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARIA MARICELA MARTINEZ-MENDOZA, also known as Cindy Lou Alvarez, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:05-CR-92-ALL -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Maria Maricela Martinez-Mendoza appeals her sentence under 8 U.S.C. § 1326 for illegal reentry into the United States after having been deported. Martinez-Mendoza argues that the “felony” and “aggravated felony” provisions of § 1326(b) are unconstitutional. This challenge is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224, 235 (1998). Although Martinez-Mendoza contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule No. 05-40916 -2- 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-Mendoza 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.

AFFIRMED.