United States v. Bartolo-Carbajal

176 F. App'x 508

Opinion

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 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.