United States v. Patino-Tarin

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006 Charles R. Fulbruge III Clerk No. 05-40451 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RODOLFO PATINO-TARIN, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-803-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Rodolfo Patino-Tarin appeals from his guilty-plea conviction and sentence for being found in the United States after previous deportation. Patino-Tarin argues that the district court erred by imposing a 16-level adjustment under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based upon his Texas conviction for burglary of a habitation. Because he objected on this basis in the district court, this issue is reviewed de novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc).

No. 05-40451 -2- Patino-Tarin’s argument is unavailing. See United States v. Garcia-Mendez, 420 F.3d 454, 455-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006).

Patino-Tarin’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Patino-Tarin 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). Patino-Tarin 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.

Accordingly, the district court’s judgment is AFFIRMED.