United States v. Mares-Calderon

* 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this opinion should not be published and is not precedent except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
June 13, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41381
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMAS MARES-CALDERON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-228-ALL
--------------------
Before KING, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Tomas Mares-Calderon (Mares) pleaded guilty to count 1 of an
indictment charging him with entering the United States illegally
following deportation. Mares was sentenced to a 21-month term of
imprisonment and to a two-year period of supervised release.
Mares gave timely notice of his appeal.
Mares 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

-- 1 of 2 --

No. 05-41381
- 2 -
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Mares’s argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), in
which the Supreme Court held that treatment of prior convictions
as sentencing factors in § 1326(b)(1) and (2) was constitutional.
Although Mares contends that a majority of the Supreme Court
would now consider Almendarez-Torres to be incorrectly decided in
light of Apprendi, “[t]his court has repeatedly rejected
arguments like the one made by [Mares] and has held that
Almendarez-Torres remains binding despite Apprendi.” United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Mares concedes as much, but he
raises the argument to preserve it for further review.
AFFIRMED.

-- 2 of 2 --