Summary Calendar UNITED STATES OF AMERICA v. Juan Antonio Pina-Martinez, also known as Juan Jose Duarte-Nino

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50856
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN ANTONIO PINA-MARTINEZ, also known as Juan Jose Duarte-Nino
Defendant-Appellant
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consolidated with:
No. 06-50862
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN JOSE MARTINEZ-ZAVALA
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:05-CR-970-ALL
USDC No. 2:05-CR-187-ALL
United States Court of Appeals
Fifth Circuit
F I L E D
June 11, 2008
Charles R. Fulbruge III
Clerk

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No. 06-50856
c/w No. 06-50862
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
2
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
In two consolidated appeals, Juan Antonio Pina-Martinez (Pina)
challenges his conviction and sentence for illegal reentry after deportation and
the revocation of a previously imposed term of supervised release. The Federal
Public Defender appointed to represent Pina on appeal previously moved for
leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
Counsel’s motion was denied and the parties were ordered to brief the issues of
whether this court could consider Pina’s appeals despite his apparently untimely
notices of appeal and whether this court should require withdrawing counsel to
certify that the Government would assert the untimeliness of a notice of appeal.
We pretermit the issue of the timeliness of Pina’s notices of appeal because
there is no jurisdictional impediment to reaching the merits of the case and his
appeal fails on the merits. See United States v. Martinez, 496 F.3d 387, 389 (5th
Cir. 2007) cert. denied, 2007 WL 3265472 (Dec. 3, 2007) (No. 07-7436). In light
of Apprendi v. New Jersey, 530 U.S. 466 (2000), Pina 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. This issue is foreclosed. United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug.
28, 2007) (No. 07-6202).
AFFIRMED.

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