United States v. Martinez-Mendoza

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40916
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA MARICELA MARTINEZ-MENDOZA, also known as Cindy Lou
Alvarez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-92-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Maria Maricela Martinez-Mendoza appeals her sentence under
8 U.S.C. § 1326 for illegal reentry into the United States after
having been deported. Martinez-Mendoza argues that the “felony”
and “aggravated felony” provisions of § 1326(b) are
unconstitutional. This challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although
Martinez-Mendoza contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule

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No. 05-40916
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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-Mendoza properly concedes that her
argument is foreclosed in light of Almendarez-Torres and circuit
precedent, but she raises it here to preserve it for further
review.
AFFIRMED.

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