                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                             F I L E D
                                                                                               July 30, 2007

                     IN THE UNITED STATES COURT OF APPEALS                               Charles R. Fulbruge III
                                                                                                 Clerk
                                  FOR THE FIFTH CIRCUIT



                                           No. 06-40995
                                         Summary Calendar


UNITED STATES OF AMERICA,

                                                                                        Plaintiff-
                                                         Appellee,

                                                versus

RAUL MANUEL MEDINA-MEDINA,

                                                                                      Defendant-
                                                         Appellant.

                      -------------------------------------------------------------
                          Appeal from the United States District Court
                                 for the Southern District of Texas
                                  USDC No. 5:05-CR-1828-ALL
                      -------------------------------------------------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

       Raul Manuel Medina-Medina (Medina) appeals his conviction and sentence for illegal reentry.

Medina argues, and the Government correctly concedes, that the district court plainly erred in

assessing a 16-level enhancement under U.S.S.G.          § 2L1.2(b)(1)(A)(ii) on the basis of Medina’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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1996 Texas conviction for retaliation; therefore, his sentence should be vacated and his case

remanded for resentencing. See United States v. Martinez-Mata, 393 F.3d 625, 628-29 (5th Cir.

2004).

         Medina’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998). Although Medina contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Medina properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

         AFFIRMED IN PART; VACATED IN PART; REMANDED FOR RESENTENCING.




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