USA v. Hernandez-Martinez

Filing 920060621

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
June 20, 2006 Charles R. Fulbruge III Clerk

No. 05-41383 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERTO HERNANDEZ-MARTINEZ, also known as Santiago Hernandez-Gonzalez, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-453-ALL -------------------Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Roberto Hernandez-Martinez appeals his sentence for being present in the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Hernandez-Martinez 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). The Government

argues that the waiver provision in Hernandez-Martinez's plea

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41383 -2agreement precludes his attack on the constitutionality of § 1326(b). We assume, arguendo only, that the waiver does not

bar the instant appeal. Hernandez-Martinez's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Hernandez-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, 126 S. Ct. 298 (2005). Hernandez-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.