USA v. Martinez, No. 05-41340 (5th Cir. 2006)
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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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