USA v. Pena-Ramirez

Filing 920061025

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 25, 2006 Charles R. Fulbruge III Clerk No. 05-41671 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DANIEL PENA-RAMIREZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-996-ALL -------------------Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Daniel Pena-Ramirez appeals his guilty-plea conviction of, and sentence for, violating 8 U.S.C. § 1326 by being found in the United States without permission after deportation. He argues,

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 70-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. He challenges as unconstitutional

both facially and as applied in his case § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41671 -2factors rather than elements of the offense that must be found by a jury. Pena-Ramirez's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although he 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, Pena-

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

Ramirez 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.