USA v. Cabrera-Nino, No. 05-41416 (5th Cir. 2006)
Annotate this Case
Download PDF
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. 05-41416 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARTIN CABRERA-NINO, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-278-ALL -------------------Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Martin Cabrera-Nino (Cabrera) pleaded guilty to Count 1 of an indictment charging him with entering the United States illegally following deportation. months of imprisonment. Cabrera was sentenced to 46 He gave timely notice of his appeal. Cabrera challenges the constitutionality of 8 U.S.C. § 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41416 - 2 waiver provision in Cabrera s plea agreement precludes his attack on the constitutionality of § 1326(b) and that, as a result of the waiver, Cabrera lacks standing to challenge the constitutionality of § 1326(b). We assume, arguendo only, that the waiver does not bar the instant appeal. Cabrera s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Cabrera 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). Cabrera 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.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
