United States v. Rodriguez-Benitez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 06-40160
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO RODRIGUEZ-BENITEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-684-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Alvaro Rodriguez-Benitez (Rodriguez) appeals his guilty-plea
conviction and sentence for violating 8 U.S.C. § 1326 by being
found in the United States without permission after deportation.
He argues, in light of Apprendi v. New Jersey, 530 U.S. 466(2000), that the 46-month prison sentence imposed in his case
exceeds the two-year statutory maximum sentence allowed for the
§ 1326(a) offense charged in his indictment. He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
*
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this opinion should not be published and is not precedent except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. 06-40160
-2-
aggravated-felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
Rodriguez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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). Rodriguez
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.