                                                                                         United States Court of Appeals
                                                                                                  Fifth Circuit
                                                                                                F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                                 March 5, 2007
                                   FOR THE FIFTH CIRCUIT
                                                                                            Charles R. Fulbruge III
                                                                                                    Clerk


                                            No. 05-41569
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-Appellee,

                                                  versus

SOFIA MARISOL LANDIN-MARTINEZ,
                                                                                        Defendant-
                                                           Appellant.

                       --------------------------------------------------------------
                            Appeal from the United States District Court
                                  for the Southern District of Texas
                                    USDC No. 5:05-CR-884-ALL
                       --------------------------------------------------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

       Sofia Marisol Landin-Martinez (Landin) appeals her guilty-plea conviction of, and 41-month

sentence for, violating 8 U.S.C. § 1326 by being found in the United States without permission after

deportation. Landin argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 41-

month term of imprisonment imposed in her case exceeds the statutory maximum sentence allowed

for the § 1326 offense charged in her indictment. She challenges the constitutionality of § 1326(b)’s



       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements

of the offense that must be found by a jury.

          Landin’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998). This court has repeatedly rejected the argument raised by Landin on the basis

that Almendarez-Torres remains binding despite Apprendi. See United States v. Garza-Lopez, 410

F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Landin acknowledges that her

argument is unavailing in light of Almendarez-Torres, but she raises it here to preserve it for further

review.

          AFFIRMED.




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