United States v. Medina-Medina

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
July 30, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40995
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
RAUL MANUEL MEDINA-MEDINA,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1828-ALL
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
RaulManuel Medina-Medina (Medina) appeals his conviction and sentence for illegalreentry.
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

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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.

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