USA v. Medina-Medina, No. 06-40995 (5th Cir. 2007)

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United States Court of Appeals Fifth Circuit F I L E D July 30, 2007 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III Clerk FOR THE FIFTH CIRCUIT No. 06-40995 Summary Calendar UNITED STATES OF AMERICA, PlaintiffAppellee, versus RAUL MANUEL MEDINA-MEDINA, DefendantAppellant. ------------------------------------------------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-1828-ALL ------------------------------------------------------------Before DeMOSS, STEWART and PRADO, Circuit Judges. PER CURIAM:* Raul Manuel Medina-Medina (Medina) appeals his conviction and sentence for illegal reentry. Medina argues, and the Government correctly concedes, that the district court plainly erred in assessing a 16-level enhancement under U.S.S.G. * § 2L1.2(b)(1)(A)(ii) on the basis of Medina s 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1996 Texas conviction for retaliation; therefore, his sentence should be vacated and his case remanded for resentencing. See United States v. Martinez-Mata, 393 F.3d 625, 628-29 (5th Cir. 2004). Medina s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Medina 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. 2005). Medina 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 IN PART; VACATED IN PART; REMANDED FOR RESENTENCING. -2-

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