United States v. Martinez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 20, 2006

Charles R. Fulbruge III Clerk No. 05-41340 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN RICARDO MARTINEZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:05-CR-231-ALL --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Martin Ricardo Martinez pleaded guilty to one count of

reentering the United States without permission after having been

deported. Martinez contends that 8 U.S.C. § 1326(b), under which

he was convicted, is unconstitutional. The Government contends

that Martinez waived his right to appeal. We need not decide the

applicability of the waiver in this case because the issue that

Martinez raises is foreclosed.

Martinez’s constitutional challenge to 8 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41340 -2-

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (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 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

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.