United States v. Martinez-Valedez

* 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this opinion should not be published and is not precedent except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
December 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41115
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL MARTINEZ-VALEDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-1022-ALL
--------------------
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Gabriel Martinez-Valedez (Martinez) pleaded guilty to an
indictment charging him with being found illegally in the United
States following a previous deportation. Martinez 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). The
Government contends that Martinez waived the right to assert this

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No. 05-41115
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question in his plea agreement. We assume, arguendo only, that
the waiver does not bar the instant appeal.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that treatment of prior
convictions as sentencing factors in § 1326(b)(1) and (2) was
constitutional. Although Martinez contends that a majority of
the Supreme Court would now consider Almendarez-Torres to be
incorrectly decided 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). Martinez
concedes as much, but he raises the argument to preserve it for
further review. The judgment is AFFIRMED.

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