          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                                 No. 06-51503
                               Summary Calendar                        September 6, 2007

                                                                     Charles R. Fulbruge III
                                                                             Clerk
UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

LAURO DE JESUS BUSTAMANTE-RODRIGUEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:06-CR-1214-ALL


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
      Lauro de Jesus Bustamante-Rodriguez was convicted, following a
stipulated bench trial, of illegal re-entry into the United States from Mexico in
violation of 8 U.S.C. § 1326. Bustamante-Rodriguez appeals the district court’s
denial of his motion to suppress, arguing that Agent Marrufo did not have
reasonable suspicion to stop the taxi in which Bustamante-Rodriguez was riding.
      “In reviewing the denial of a motion to suppress, the district court’s factual
findings are reviewed for clear error, and its legal conclusions, including whether

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-51503

there was reasonable suspicion for a stop, are reviewed de novo.” United States
v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole. Id. The evidence
presented at a suppression hearing must be viewed in the light most favorable
to the prevailing party. Id.
      The Fourth Amendment permits a Border Patrol agent conducting a
roving patrol to stop a vehicle for purposes of a temporary investigation “if the
officer’s action is supported by reasonable suspicion to believe that criminal
activity may be afoot.” United States v. Arvizu, 534 U.S. 266, 273 (2002)(internal
quotation marks and citations omitted). This court has set forth factors that
may be considered in the “fact-intensive” reasonable suspicion analysis, which
analysis “weigh[s] not the individual layers, but the laminated total” of all
circumstances. Jacquinot 258 F.3d at 427. These factors include:
            (1) proximity to the border; (2) characteristics of the
            area; (3) usual traffic patterns; (4) agent’s previous
            experience in detecting illegal activity; (5) behavior of
            the driver; (6) particular aspects or characteristics of
            the vehicle; (7) information about recent illegal
            trafficking in aliens or narcotics in the area; and (8) the
            number, appearance, and behavior of the passengers.

Id.
      The stop occurred less than one-half mile from the border, in a
neighborhood where illegal aliens commonly hide. Agent Marrufo had been
informed that illegal aliens were in the area. Taxis are not common in the area
at night, and, in the year prior to the suppression hearing, Agent Marrufo had
stopped at least ten taxis containing illegal aliens. Agent Marrufo also observed
individuals run to the taxi as soon as it stopped, and one of them looked at
Agent Marrufo’s vehicle through the taxi’s rear window. While Agent Marrufo
was looking for five suspected aliens, and only saw two get into the taxi, he
testified that aliens often split up soon after they cross the border. Bustamante-


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Rodriguez’s contention that too much time had elapsed between the reported
border crossing and the stop is unsupported by the record. The totality of the
circumstances show that Agent Marrufo had a reasonable suspicion of criminal
activity sufficient to stop the taxi. See id. at 430.
      Bustamante-Rodriguez also argues, in light of Apprendi v. New Jersey, 530
U.S. 466 (2000), that the 41-month term of imprisonment imposed in his case
exceeds the statutory maximum sentence allowed for the § 1326(a) offense
charged in his indictment. He challenges the constitutionality of § 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.
      Bustamante-Rodriguez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although he
contends that Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres 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.
2005). Bustamante-Rodriguez properly concedes that his argument is foreclosed
in light of Almendarez-Torres, but he raises it here to preserve it for further
review.
      AFFIRMED.




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