United States v. Bartolo-Carbajal

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 12, 2006 Charles R. Fulbruge III Clerk No. 05-40700 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JACINTO BARTOLO-CARBAJAL, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2247 -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Jacinto Bartolo-Carbajal (Bartolo) appeals his conviction and sentence following his guilty plea to being illegally present in this country subsequent to deportation, in violation of 8 U.S.C. § 1326. For the first time on appeal, Bartolo 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 be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Bartolo’s constitutional challenge is foreclosed by No. 05-40700 -2- Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Bartolo 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). Bartolo 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.