       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT United States Court of Appeals
                                               Fifth Circuit

                                                               FILED
                                                               June 11, 2008
                             No. 06-50856
                           Summary Calendar              Charles R. Fulbruge III
                                                                 Clerk

UNITED STATES OF AMERICA

                                        Plaintiff-Appellee

v.

JUAN ANTONIO PINA-MARTINEZ, also known as Juan Jose Duarte-Nino

                                     Defendant-Appellant
                     ----------------------------
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
                                      No. 06-50856
                                    c/w No. 06-50862

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.




       *
         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.

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