U.S. Court of Appeals for the Fifth Circuit, 2006

United States v. Martinez-Martinez

United States v. Martinez-Martinez
U.S. Court of Appeals for the Fifth Circuit · Decided August 25, 2006 · Davis, Per Curiam, Smith, Wiener
195 F. App'x 235

United States v. Martinez-Martinez

Opinion

PER CURIAM: *

Josefina Martinez-Martinez appeals her guilty-plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. She challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than as elements of the offense that must *236 be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Martinez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Martinez 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, — U.S. —, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Martinez properly concedes that her argument is foreclosed in light of AlmendarezTorres and circuit precedent, but she raises it here to preserve it for further review.

AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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