United States v. Medina-Medina

235 F. App'x 253

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 30, 2007
• Docket: 06-40995
• Status: Unpublished

Opinion

PER CURIAM: *

Raul Manuel Medina-Medina (Medina) appeals his conviction and sentence for illegal reentry. Medina argues, and the Government correctly concedes, that the district court plainly erred in assessing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) on the basis of Medina’s 1996 Texas conviction for retaliation; therefore, his sentence should be vacated and his case remanded for resentencing. See United States v. Martinez-Mata, 393 F.3d 625, 628-29 (5th Cir.2004).

Medina’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Medina 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005). Medina 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 IN PART; VACATED IN PART; REMANDED FOR RESEN-TENCING.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.