United States v. Patino-Tarin

176 F. App'x 442

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 11, 2006

Charles R. Fulbruge III Clerk No. 05-40451 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODOLFO PATINO-TARIN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-803-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Rodolfo Patino-Tarin appeals from his guilty-plea conviction

and sentence for being found in the United States after previous

deportation. Patino-Tarin argues that the district court erred

by imposing a 16-level adjustment under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based upon his Texas conviction for burglary

of a habitation. Because he objected on this basis in the

district court, this issue is reviewed de novo. United States v.

Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40451 -2-

Patino-Tarin’s argument is unavailing. See United States v.

Garcia-Mendez, 420 F.3d 454, 455-57 (5th Cir. 2005), cert.

denied, 126 S. Ct. 1398 (2006).

Patino-Tarin’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Patino-Tarin 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). Patino-Tarin 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.

Accordingly, the district court’s judgment is AFFIRMED.