United States v. Lino-Mejia

* 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this opinion should not be published and is not precedent except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 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40405
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOVEL LEONARDO LINO-MEJIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-635-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jovel Leonardo Lino-Mejia appeals his guilty-plea conviction
for being an alien found in the United States after deportation
subsequent to an aggravated felony conviction. The district
court sentenced Lino-Mejia to 63 months of imprisonment and three
years of supervised release. We need not decide the
applicability of the waiver in this case because the only issue
that Lino-Mejia raises is foreclosed.

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No. 05-40405
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Lino-Mejia 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). Lino-Mejia’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Lino-Mejia 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). Lino-Mejia 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.
Accordingly, the judgment of the district court is
AFFIRMED.

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